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CONTESTED ELECTION CASE OF CARNEY VS. MORGAN 
HEARINGS 

BEFORE THE 

COMMITTEE ON ELECTIONS NO. 2 

HOUSE OF REPRESENTATIVES 

SIXTY-THIRD CONGRESS 

■ 
Second Session 



ON 

THE CONTESTED ELECTION CASE OF 

JOHN J. CARNEY, Contestant 

vs. 
DICK T. MORGAN, Contestee 

FROM THE SECOND CONGRESSIONAL DISTRICT OF OKLAHOMA 



APRIL 29, 30, MAY 1, 2, 4, 5, and 6, 1914 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1914 






d; gfd, 

JUfi 27 1914 



i 

- 



CONTESTED ELECTION CASE OF CARNEY YS. MORGAN. 



Committee on Elections No. 2, 

House of Representatives, 

Wednesday, April 29, 1914. 

The committee this day met, Hon. James A. Hamill (chairman) 
presiding. 

The Chairman. Gentlemen of the committee, we have met to-day 
to hear the case of John J. Carney versus Dick T. Morgan. Is there 
anyone here representing Mr. Carney? 

Mr. E. J. Giddin.gs. I represent Mr. Carney, Mr. Chairman. 

The Chairman. Is there anyone representing Mr. Morgan ? 

Mr. L. T. Michener. I represent Mr. Morgan. My name is L. T. 
Michener, of Washington, D. C. 

The Chairman. You may proceed, Mr. Giddings. 

Mr. Michener. Before Mr. Giddings proceeds, Mr, Chairman, I 
would like to renew the objection made at various points in this 
record, while the contestants' evidence was being taken. These 
objections invoke the rule that depositions shall be reduced to writing, 
the questions and answers shall be reduced to writing in the presence 
of the witness and be signed by him. 

After the taking of evidence in this case had proceeded for a little 
while that rule was broken, over the objection of the contestee, and a 
little bit later a stenographer was introduced, over the objection 
of the contestee, and he took the evidence as stenographers do and 
certified to its accuracy. Those objections were made as the occa- 
sions arose, and we are still raising those objections. We do not 
want by silence to appear to acquiesce in the alleged regularity of 
the taking of the depositions. 

Mr. Oglesby. Do I understand that those objections are as to 
the correctness of any fact that would go to the substance of this 
matter, or are they merely technical objections? 

Mr. Michener. They are merely technical in that the rules of the 
committee were not followed in the taking of the depositions. 

Mr. Stafford. You do contend that they are merely ex parte 
depositions ? 

Mr. Michener. It is for the reason that they were not taken as 
the rules require. 

Mr. Giddings. The statute requiring the reduction of the questions 
and answers to writing was a statute passed in the seventies, at a 
time when stenography was not an exact science as it is to-day, and 
the courts have uniformly held that a broad construction should be 
placed upon a statute of that nature, and that unless there are some 
questions or answers which are different from what they were when 
propounded or given, a technical objection of that kind will not lie. 



4 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mi\ Oglesby. What I wanted to bring out was whether or not 
there was a contention that the stenographer's minutes were not 
correct. 

Mr. Giddings. No, sir; they can not make such a contention. 

Mr. Stafford. There is something in the brief of the contestee 
which claims that the depositions were not taken according to the 
rules of the committee, and that therefore they should be disregarded. 

Mr. Michener. That is the objection which we formally renew. 

Mr. Oglesby. There is no objection raised as to the correctness of 
the transcript of the testimony? 

Mr. Michener. There is no objection to that. 

Mr. Giddings. That matter has been so often passed upon by the 
courts, that we did not think it would be raised at this time. 

Mr. Stafford. It was raised in the contestee's brief. 

Mr. Giddings. It was raised at the trial, but a number of questions 
and answers went in without objection, and later on they wanted to 
require us to reduce each one to writing, and have all of them signed 
in the presence of the witnesses, which would have taken more than 
the time allowed for which to take the testimony of the contestant. 

The Chairman. You may proceed with your argument, Mr. Gid- 
dings. 

ARGUMENT OF E. J. GIDDINGS, ESQ., COUNSEL FOR MR. JOHN J. 
CARNEY, CONTESTANT. 

Mr. Giddings. If the committee please, this case involves a very 
serious question to my people. It has been briefed and the record 
preserved with the utmost care, because upon the decision of this com- 
mittee, to some extent, may rest the future elections of my State, in- 
volving Congressmen. 

Previous to the last general election the people of Oklahoma, by a 
majority of over 50,000, adopted at the ballot box a law which be- 
came known as the "grandfather clause." An examination of this 
law will show that it was largely predicated upon the law of North Caro- 
lina, which received a favorable interpretation by the supreme court 
of the State of North Carolina, the decision of that court becoming a 
final decision by failure of an appeal to the United States Supreme 
Court thereon. 

Subsequent to the passage of that law in Oklahoma by the majority 
I have stated, the supreme court in my State, not once, but thrice, 
upheld the validity of the constitutionality of that provision. After 
the supreme court had upheld it, an inferior Federal tribunal, as the 
record in the case will show, when two of our elections officials were 
indicted after the election of 1910, held the law invalid, held it as being 
discriminatory when applied to the negro race. 

Two election officials, as the record will disclose, in Kingfisher 
County, Okla., in the black belt, were prosecuted in the Federal 
court and convicted. Conviction is pending now, upon appeal, in the 
United States Supreme Court. 

The Chairman. Those were the cases of Beal and Guinn. 

Mr. Giddings. Yes. 

The Chairman. Both of them ? 



I 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 5 

Mr. Giddings. Yes. These are the parties who are disclosed by 
the record, and it will not be controverted by the contestee or his 
counsel. 

With the record of that conviction in the minds of all the precinct 
election officials of the State, the Republican campaign committee, 
the Republican manager for Dick T. Morgan in the previous cam- 

aign, who afterwards became the United States district attorney 
or the western district of Oklahoma, sent into each negro precinct 
in the last congressional election a warning circular, which you will 
find set forth in full in the record, on page 9, in which each precinct 
election official was warned that if he enforced the so-called grand- 
father law of that State, he would meet a like fate as Bell and Quinn 
had met, advising that election official, before he sought to enforce 
that law in his precinct, that he talk it over with his wife and see 
whether or not it would be for the peace and harmony of his domestic 
affairs for him to serve a term in the penitentiary. 

Attached to that circular was a letter from the United States dis- 
trict attorney of the western district of Oklahoma, in which he 
quoted from different decisions, and in which he advised that even 
the defense of good faith 

Mr. Stafford. I do not see any citations at all of any decision in 
that letter to which you refer. 

Mr. Giddings. It is there, in the record. 

Mr. Stafford. There is no citation of authorities at all in his 
letter. 

Mr. Giddings. Oh, yes. 

Mr. Stafford. I have the letter before me in the record, and I 
read it over last night, and I do not see any citation of any decision 
in that letter. 

Mr. Rogers. It is on pages 8 and 9 of the record. 

Mr. Giddings. It cites the criminal code and the propositions of 
law relating thereto, and it cites the decisions of the United States 
district courts of the eastern and western districts of Oklahoma on 
the constitutionality of the law. 

Mr. Stafford. The counsel for the contestant has made a state- 
ment in regard to the record, and I have taken exception to it. 
Now I direct his attention to his brief, on pages 25 and 26, where 
that letter is contained. 

Mr. Giddings. I had intended to read the letter. 

Mr. Stafford. The gentlemen stated there were copious citations 
of the decisions of the courts in that letter. I fail to find any citations 
in that letter. 

Mr. Giddings. You will find them if you read it. He cites copious 
citations from the supreme court of Oklahoma in regard to the 
constitutionality of the law. 

Mr. Stafford. There is no citation of any case in that letter. 

Mr. Giddings. He cites the decisions. 

The Chairman. He refers to the cases of Bell and Quinn and re- 
minds his interrogator of actions taken by the court in those cases 
and then goes on to comment on the power of the United States 
Congress in its own sphere to be supreme. 

Mr. Giddings. I had no intention to misquote the statement of 
the United States attorney, and I had intended a little later to read 
it to the committee in full. 



6 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

The Chairman. Let me say this to counsel, and to everybody con- 
cerned in the case, that if anyone arguing a case before the com- 
mittee misstates anything to the committee and says something 
which is not in his brief or in the record he injures his own case, be- 
cause the committee will consider the matter very carefully. I 
simply make that statement because it is suggested by what has 
come up here this morning. 

Mr. Giddings. I had intended to read the letter to which refer- 
ence has been made — to read it in full to the committee. 

The Chairman. If anyone arguing a case before the committee 
lays down grounds which he can not substantiate, when the com- 
mittee comes to consider the case they will take that matter under 
advisement. 

Mr. Giddings. I had intended to read this letter in full and let the 
committee pass on it — to let the committee judge for itself whether 
there are any copious citations therein or not; and I had also in- 
tended to read the grandfather law and the warning circular to 
which I have referred, in addition to this letter, and then to quote 
from the testimony in the case of several witnesses as to what effect 
that had upon them in the enforcement of that law. I had no in- 
tention of misquoting anybody. I do not practice law that way. 

I was saying, before I was interrupted, that this letter contained 
references — and if the gentleman would rather have it now I will 
read it to him — as to what the district courts on the Federal side in 
our State had held with reference to that matter. It can not be 
questioned but what they had held the law to be invalid and uncon- 
stitutional, and in violation of the construction placed upon that law 
and in contradiction of that construction by the supreme court of 
the State— — 

Mr. Stafford. I have not found in the briefs of either of the parties 
any reference to the citations of the decisions of the Federal courts 
passing upon such case. Have they been printed, or were they 
merely verbal opinions ? 

Mr. Giddings. They were opinions by the district judges and the 
circuit judges in the eastern and western district of Oklahoma. They 
have never been printed, to my knowledge. 

Mr. Stafford. They have not been reported, then ? 

Mr. Giddings. They have not been printed, as far as I know. It 
is possible that they may have been printed, and I not know anything 
about it. 

After the election, several election officials in this congressional 
district, and particularly in Oklahoma County, where there were about 
1,400 or 1,500 negro voters, sought to amend the returns originally 
made by them to the county election boards setting up the fact that 
there had been no valid election in their precincts, and that they had 
been intimidated in the enforcement of the law; that negroes had 
voted there who had not received the test; that they had not applied 
the test for the reason that they were afraid of Federal prosecution 
in the light of these two previous convictions, and asked that the 
returns be amended for the obvious reason that the vote in the several 
precincts —the good vote was so intermingled with the bad vote — that 
you could not tell what the result in the precinct would have been 
without it, and that therefore, under all the rules of election contests, 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 7 

the entire precinct must be eliminated from the consideration of the 
entire poll. 

The Chairman. Do you refer to the instance where the 10 counties 
were eliminated ? 

Mr. Giddings. I am referring to the different precincts where the 
amended return was made. 

The Chairman. In the election return I understand there were 
10 counties, the votes of which were not counted at all. 

Mr. Giddings. No, sir; there were 10 precincts in Blaine County in 
which he claims he can go back of the election board. 

The Chairman. That it was the county board which eliminated 
the 10 precincts? 

Mr. Giddings. Yes, sir; that is a part of his defense. Our con= 
tention is that you could not go back of that action. 

Mr. Oglesby. I have not read the record, and I do not know what 
your contention is along the line which you have just suggested now. 
Was there any other objections made to keeping the records of these 
votes which you contend should not have been counted, or do you 
claim that because of the failure to enforce this law by reason of the 
intimidation to which you have referred, that the entire number of 
votes of the precinct should be thrown out ? 

Mr. Giddings. The latter is our contention. 

Mr. Oglesby. That is, you have not made any attempt ? 

Mr. Geddings. We could not keep such a record. 

Mr. Rogers. May I ask a question right there, Mr. Giddings ? 

Mr. Giddings. Certainly. 

Mr. Rogers. I want to ask, do you charge directly in your brief 
or by means of testimony that this warning circular letter was sent 
out either by the contestee or by his authorized agents ? 

Mr. Giddings. Yes, sir. 

Mr. Rogers. Can you refer us to the particular part of the record 
where that is charged ? 

Mr. Giddings. It is set forth — in the cross-examination of the 
witnesses introduced in behalf of the contestee these facts appear: 
First, that the party who sent this letter out, Homer N. Boardman, 
had been the campaign manager of the contestee in the previous 
campaign; that after being his campaign manager in the previous 
campaign, he was selected as United States attorney for the Western 
District of Oklahoma; that the contestee is in no position to claim 
that while he might accept the fruits of what these circulars brought 
to him, that he can reject them at the same time. In other words, 
that he got the benefit of that intimidation, which was particularly 
to his benefit, and he can not stand in the position of disclaiming 
that he received that benefit, and at the same time accept it before 
this committee. 

Mr. Stafford. I believe that we are agreed that the contestee 
swore he had no knowledge of the circular being sent out. 

Mr. Giddings. Yes, but he can not take the benefit of a thing like 
that and then reject that which comes as a necessary consequence of 
it. I will show you by authorities that where intimidation is prac- 
ticed, the fact as to whether the contestee was a direct agent in the 
using of it does not make any difference; if it was in his benefit, he can 
not complain. 



8 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

In this election' there were about — I do not quote exactly, because 
I am trying to take up as little time as the grave matters involved 
in this case will warrant — there were a little over 48,000 votes cast 
for the two parties in this contest. Upon the face of the returns, 
Mr. Morgan had a majority of 663, or a plurality over Mr. Carney, 
his nearest competitor. It is evident there that with such a large 
vote it would not take very much fraud, it would not take very much 
intimidation to change the results. I take it that those things which 
are admitted in the answer of the contestee do not need proof; that 
we may go to the bat in this case with the pleadings as they are, and 
with the admissions as they are in the record. 

There are admissions in this record of a number of illiterate voters 
in each county in the district. There is an admission in this record 
that there were 1,740 negro voters in the district who voted. There 
is an admission, however, qualified in this way, that only so many in 
each precinct were disqualified by virtue of illiteracy. 

The contestee admits that in Oklahoma County there were 268 
illiterate male negroes. In Blaine County he admits there were 82 — 
that is on page 15 of the record; in Canadian County he admits there 
were 34 illiterate male negroes; in Custer County there were 13 
illiterate male negroes, and so on. 

Now, then, I come to these exhibits, and if possible I would like at 
first to get your undivided attention upon them, because they are the 
storm centers of this contest. You will find them beginning on page 
8 of the record. It was the contention of the contestee before, and I 
suppose it is yet, that this Exhibit A on page 8 of the record, the 
so-called grandfather law of Oklahoma, was violative of the righls of 
certain citizens of Oklahoma, particularly of the negro race, in that it 
denied or abridged their rights. That law says : 

No person shall be registered as an elector in this State or be allowed to vote in any 
election held herein unless he be able to read and write any section of the constitu- 
tion of the State of Oklahoma; but no person who was, on January 1, 1866, or at any time 
prior thereto, entitled to vote under any form of government, or who at that time 
resided in some foreign nation, and no lineal descendant of such person shall be denied 
the right to register and vote because of his inability to so read and write sections of 
such constitution, 

Precinct election inspectors having in charge the registration of electors shall 
enforce the provisions of this section it the time of registration provided registration 
be required. Should registration be dispensed with, the precinct election officers 
when electors apply for ballots to vote. 

That was an amendment to the constitution of the State of Okla- 
homa, section 4a of article 3. 

The Chairman. Suppose you explain the meaning of that; give 
us a full explanation of that clause, because, while it may be familiar 
to gentlemen of some States, it is not familiar to all of us. 

Mr. Giddings. Now, as to the first section, down to the semi- 
colon after the word "Oklahoma" there can be no question but 
what the States in their sovereign capacities have the right to pre- 
scribe an educational qualification test for voters. It has been 
uniformly held by all States and courts that it is in the province of 
the States to so prescribe, and that has been so uniformly held 
that it is no longer an open question, and I do not suppose that the 
contestee will contend that it is. So far the law is admittedly 
valid. 



CONTESTED ELECTION CASE OE CARNEY VS. MORGAN. \j 

Then we come to the provision beginning — 

but no person who was, on January 1, 1866, or at any time prior thereto entitled to 
vote under any form of government or who at that time resided in some foreign nation, 
and no lineal descendant of such person shall be denied the right to register and vote 
because of his inability to so read and write sections of such constitution. 

The Chairman. The effect of that is that it has the opposite 
effect from its wording; it means that he must be a lineal descendant 
of a man who could vote ? 

Mr. Giddings. Yes, sir; and this provision, as Senator Bailey well 
set forth in his brief in the Beal-Guinn cases, does not deny anyone 
the right to vote; it does not abridge anybody's right to vote, it 
enlarges it. It gives others the right to vote, who, previous to the 
adoption of this clause, did not have that right within the jurisdiction 
of Oklahoma. 

I do not think that is an open question. It was the consensus of 
opinion of a number of constitutional lawyers with whom I have 
conferred about the matter. Then that provision, as the Chairman 
says, might be turned around to meet the contingency. 

I do not think that there is any question but what the purpose of 
the law was to disfranchise the illiterate negroes of my State, and I 
do not argue any other proposition. I do not see why such a law 
should not be a valid law. If a man can not read and write he is 
not worthy of the privileges and rights of citizenship, and ought not 
to be permitted to vote. 

That law was in full force and effect at the time of the last general 
election. As I have already called to your attention, it had been 
adopted by a majority of over 50,000 votes. Certainly it is an ele- 
mental rule of constitutional construction that all reasonable doubts 
are to be resolved in favor of constitutional provisions. 

Here was the attitude, and I will show you how it affected the 
result, if you please, by its effect upon the precinct election officials 
of my State, and in what position the precinct election officials of my 
State were placed, they were placed in between the Scylla of Federal 
prosecution on the one hand and the Charybdis of State prosecution 
on the other hand. You said to them, if you enforce the State law, 
made a mandate by 50,000 majority of the citizens of the State of 
Oklahoma, you violate the Federal law, and if you fail to enforce the 
Federal law, you violate the State law. Either way you have a 
prosecution, either in the State court or in the Federal court. So 
the Republican organization ingeniously hit upon the theory that if 
they could stamp into the memory of the precinct officials in the 
State, put the fear of Federal prosecution in them, and make them 
allow the illiterate negroes to vote at an election, where the people of 
the State had decreed that they were not permitted to vote, it 
would be to their advantage to do that. 

The Chairman. Were there any other officials running outside of 
candidates for Congress at this election? 

Mr. Giddings. Oh, yes; there were presidential electors and 
candidates for the Supreme Court of the State and the like. 

As Exhibit A, I have read you this election law, and I have made 
it as plain as I know how. 

Mr. Stafford. Before you go any further, I wish you would explain 
for the benefit of the members of the committee what the procedure 



10 CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 

is under this law, assuming that it is valid, when the persons come to 
register, whether a certificate of registration is issued to them or not. 

Mr. Giddings. Yes, sir. 

Mr. Stafford. And what the effect of registration is when they 
have been accepted by the precinct boards as qualified electors, by 
having their names enrolled as qualified electors. 

Mr. Giddings. Under our law there are no registrations in the 
county precincts. Registration merely applies to the cities. Regis- 
tration in the cities is conducted through the medium of the county 
election board which appoints the precinct registration officials, who 
have the right, if they see fit, and who, under this law are designated 
as the proper officers to qualify to that extent, at the registration, 
those persons applying for certificates of registration. These cer- 
tificates are issued by registration officers, and I will show you that 
the same intimidation that was practiced upon the precinct election 
officials at the election was practiced on the registration officials 
when the negroes were seeking certificates of election. 

Now, then, the registration officials have the right to qualify, but 
that does not bar the precinct election officials at the polls from 
qualifying someone who may have escaped, through the medium of 
getting a certificate from the registration officials. So that we have 
a dual qualification, one that may be issued by the registration 
officials when the voter applies for a certificate, and the other may 
be given at the polls when he seeks to vote. 

Mr. Broussard. You mean if he fails to register that he is still 
permitted to appear before the commissioners ? 

Mr. Giddings. No. 

Mr. Broussard. I would like you to make that particular matter 
a little bit clearer. 

Mr. Giddings. No, if he registers and gets by some registration 

Erecinct officer, who does not test him up to the standard required 
y our — — 

Mr. Broussard (interposing) . He issues him a certificate ? 

Mr. Giddings. He issues him a certificate, and if he then appears 
before the precinct election board at the general election and offers to 
vote, then the precinct inspector has the right to further qualify him. 

Mr. Broussard. He tests his qualifications to see whether he was 
properly tested in the first instance ? 

Mr. Giddings. Yes, sir. 

Mr. Stafford. Is the precinct board that passed upon his qualifi- 
cations and registration the same board which passes upon his quali- 
fications at election ? 

Mr. Giddings. Not always; sometimes it is; sometimes it is not. 

Mr. Stafford. It is the same precinct, but the personnel of the 
board may be different at the election, or rather at the primary when 
they are obliged to register in the August preceding the general 
election ? 

Mr. Giddings. Yes, sir. 

Mr. Broussard. This only applies to cities ? 

Mr. Giddings. Yes, sir. 

Mr. Broussard. In the country conditions are different? 

Mr. Giddings. Yes, sir. 

Mr. Broussard. There they have no registration at all, have they? 

Mr. Giddings. They have no registration. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 11 

Mr. Broussard. They are qualified on the spot? 

Mr. Giddings. Yes, sir. 

Mr. Broussard. They are tested by the election commissioners at 
the polls, are they ? 

Mr. Giddings. That is right. 

Mr. Taylor. Are they called judges or commissioners ? 

Mr. Giddings. They are called election judges, inspectors, clerks. 
We have an election inspector, an election judge, and an election clerk 
in each precinct. 

I desire now to call the attention of the members of the commit- 
tee 

The Chairman (interposing) . Suppose you go back again and 
discuss once more the point in regard to the conflict of the State and 
the Federal law, because I do not know how it strikes the minds of 
the rest of the committee, but that is something we will have to 
consider. 

Mr Oglesby. In that connection I would like to have you, in dis- 
cussing that question, to state how many judges, what judges have 
held the law constitutional, and what judges have held it unconsti- 
tutional. 

Mr. Giddings. Yes, sir. 

Mr. Oglesby. And also I would like to know if you can tell me 
what compensation is paid judges in your State, and whether the 
Federal judges are appointed from members of the bar in Oklahoma, 
and in general the comparative standing at the bar of the men who 
are on the Federal bench and those who are on the State bench. I 
do not mean in any political sense, but how they are usually regarded, 
and we will also get some information from the gentlemen on the 
other side in regard to that. 

The Chairman. That might be embarrassing. 

Mr. Giddings. As a lawyer practicing before those courts I would 
not like to draw a comparative estimate of the legal attainments of 
the Federal and State judiciary. My own opinion 

Mr. Oglesby (interposing). It may not necessarily mean that 
there is any distinction. 

Mr. Giddings. I will try to make this matter a little plainer if I 
can. The Federal Government had nothing to do with the adoption 
of the grandfather clause in the State of Oklahoma. It was adopted 
by the people of my State at the ballot box. It was sought to be 
applied to all voters within the State. The Supreme Court of the 
State, at the time of the rendition of the opinion in the Atwater case, 
the first case in which they upheld the validity of the grandfather 
clause, was composed of three judges who had been members of the 
constitutional convention of the State of Oklahoma, which drafted 
the constitution of Oklahoma, and two other men learned in the 
law. The judges who were in the Federal courts at that time had 
been appointed for life by President Taft, and I am inclined to 
believe, before the adoption of our constitution, or at least about that 
time. The supreme court of the State held this law valid. 

The Federal court held it invalid, and the case was appealed to the 
circuit court of appeals, which court in turn certified the constitu- 
tionality of that law to the Supreme Court of the United States from 
the circuit court of appeals, and if I may be presumed to say so at 



12 CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 

this time we are expecting soon to have a favorable decision from the 
Supreme Court of the United States. 

Mr. Oglesby. Do you mean that the circuit court of appeals held 
the law to be constitutional ? 

Mr. Giddings. No; the circuit court of appeals, without passing 
upon the question, it being of a constitutional nature and of wide- 
spread importance, certified the question to the Supreme Court of the 
United States for an opinion thereon. 

Mr. Oglesby. Without passing on it ? 

Mr. Giddings. Without passing on it, yes, sir. 

Mr. Rogers. At this point I would like to ask what, in your opinion, 
is the bearing of the constitutionality of this grandfather clause upon 
our examination of this particular question ? 

Mr. Giddings. It has this bearing upon it: Of course, if this law 
is invalid and unconstitutional, then these negroes were entitled to 
vote, and these others were entitled to vote, and the contest must 
therefore fall to the ground. 

The Chairman. When do you expect to have a decision from the 
Supreme Court of the United States on that question ? 

Mr. Giddings. I was talking to Senator Bailey yesterday and he 
anticipates an early decision. It seems that one of the judges, Judge 
Lurton, has been absent for some time on account of illness, and they 
have been awaiting his return. 

The Chairman. When was it argued before the United States Su- 
preme Court ? 

Mr. Giddings. Six or eight months ago. 

Mr. Rogers. Can it be that a man's seat in Congress must hang 
suspended between heaven and earth, perhaps for years, while a 
statute is being construed by the highest courts ? In other words, 
this committee has the full right to decide for itself whether or not 
that law is constitutional ? 

Mr. Giddings. Yes, sir. 

Mr. Rogers. And upon that decision by this committee depends 
the validity of the law in question ? 

Mr. Giddings. My contention with regard to that is this, that this 
law is presumed to be constitutional; and if it is presumed to be con- 
stitutional until overturned, beyond a reasonable doubt, that that 
is. the constitutional construction placed by the Supreme Court of 
the United States upon such provisions, and that, if not binding upon 
this committee, at least the decision of the supreme court of the 
State of Oklahoma upholding the constitutionality of this statute 
must be greatly pursuasive upon the committee — certainly much more 
so than the decision of an inferior tribunal of Federal origin. 

Mr. Broussard. Did not the Supreme Court of the United States 
pass upon a similar provision of the constitution in Louisiana ? 

Mr. Giddings. No, sir; I do not think so. Not a similar provision. 

Mr. Broussard. I think the so-called grandfather clause in the 
North Carolina constitution, with a slight deviation, is practically the 
original grandfather clause in the Louisiana constitution. My recol- 
lection is that there were cases taken to the Supreme Court from 
Louisiana. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 16 

Mr. Giddings. I do not think this question has even been decided 
by the Supreme Court of the United States, that is, a question on all 
fours with this particular question. 

Mr. Broussard. I think it was not as to the right of voting, or as 
to the qualification to vote, but as to the qualification for becoming 
a juror under our State laws, which require a man to become an elector 
in order to serve on a jury. I think there is a decision on that ques- 
tion where the Supreme Court upheld the right of the State to so 
qualify suffrage as to permit the grandfather clause to operate under 
the Constitution of the United States. 

Mr. Giddings. I think that might apply; but there would be a cer- 
tain distinction between the qualifications of a juror and an elector, 
where a juror was sitting at the State courts, and where the elector 
was voting for a State and National ticket. 

Mr. Broussard. I recognize that. 

Mr. Giddings. It is my contention that this tribunal sits as a judge 
of the law as well as a jury trying the facts, and it has the right to 
pass upon the validity of this law, and it ought to take the decision 
of the supreme court of the State, rendered in three different opin- 
ions, one of them being in the brief of the contestant, upholding the 
validity of this act. 

Now then, I want to take up another question, and I ask the 
particular attention of the members of this committee to this circular 
scattered throughout the second congressional district, of Oklahoma, 
and I want to ask any fair-minded man, carefully considering this 
circular, if it is sufficiently connected with this test, can escape the 
proposition that it is ipso facto intimidation. This is what the 
circular says : 

TALK IT OVER WITH YOUR WIFE, MR. ELECTION OFFICIAL, AND REMEMBER THAT YOU 
WILL GO TO THE PENITENTIARY. 

If you violate the Federal election laws, and not Gov. Cruse nor his brother, Attorney 
A. C. Cruse. You will remember that the latter defended Beall and Guinn, who last 
year were convicted in the United States Court at Enid and sentenced to the peni- 
tentiary for violating the Federal election law, and the State paid the attorneys in 
these cases about $14,000 for defending these two men. This averages about $7,000 
per case. It is not likely that the people of this State, already overburdened with 
taxes, will be willing to continue to pay out $7,000 every time an election official 
violates the Federal statutes. The people are not sufficiently anxious to enrich the 
governor's brother, Attorney A. C. Cruse, besides what's the use? Where conviction 
is sure, there is nothing gained by paying out big sums of money for attorney feee. 
That is to say, there is nothing gained by anyone but the attorney. 

Now, to every precinct election official — and this is undenied in these pleadings — 
wherever the negroes voted, that warning circular, in conjunction with the opinion 
of the United States attorney for the Western District of Oklahoma was sent. It was 
not calculated to stiffen the backbone of a man to send him a circular telling him if 
he upheld the dignity of the State laws he would go to the Federal penitentiary, where 
he is working for $2 a day. They tell him to go and talk it over with his wife, and then 
the contestee comes here and says "that it did not prove that I did it. I have got 
my fingers crossed; I had nothing to do with it. It is true I may accept the rewards 
of the intimidation, but I reject any statement that it was done in my behalf." 



14 CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 

This is the letter which was sent out with that circular. You will 
notice it is under the heading of the Department of Justice. The 
letter says : 

Department of Justice, 
Office of the United States Attorney, 

Western District of Oklahoma, 

Guthrie, October 31 , 1912 . 
Fred A. Wagoner, Deputy County Attorney, 

Chandler, Okla. 
Dear Sir: I have your letter asking whether at the coming general election the 

J>recinct election officers can enforce the law commonly termed the "grandfather 
aw," and escape punishment therefor in the Federal courts on a showing of good 
faith in enforcing said law. 

That is to say that a man can not escape in the Federal courts, notwithstanding he 
may act in good faith; notwithstanding he may be doing what he considers his duty 
as an election official; that notwithstanding those things, you may put stripes upon 
him. 

Then the letter goes on to say: 

I presume your question has arisen on account of the apparent conflict between 
the decision of the supreme court of the State of Oklahoma and the United States 
district courts for the eastern and western districts of Oklahoma on the constitu- 
tionality of the law, the State supreme court having held the law constitutional, 
while the two United States courts in the State have held it unconstitutional and void. 

It must be borne in mind that this all involves purely State metters, as well as 
Federal matters, and in considering the same these two phases of the law must be kept 
in mind. As to the purely State questions involved in the law I do not express any 
opinion, the same not being within the jurisdiction of this office, and this opinion is 
directed solely to the Federal question involved — that is, the application of the grand- 
father law to negroes who, on account of race, color, and previous condition of servi- 
tude, are not permitted to vote without submitting to certain tests of reading and 
writing — nor shall I argue the question of the constitutionality of the law, for the rea- 
son that, after very extensive arguments by some of the best legal talent of the State, 
it has already been in positive terms declared unconstitutional by the two United 
States district courts in this State, which decisions are now the law_ of the State as 
far as the Federal questions therein involved are concerned, having never been 
reversed or modified. 

Knowing this, that the Federal courts having jurisdiction over the entire State 
have declared the law to be unconstitutional and of no force and effect, the question 
arises whether the precinct election officers can enforce it against negroes on account 
of their race and color, and then when prosecuted in the Federal courts for doing so 
defend the prosecution on a plea of good faith in enforcing the law. 

That is to say, that notwithstanding the precinct election official 
may take an oath that he will uphold the laws of his State as a 
precinct election official, that that oath under the law of the State 
shall not protect him in the Federal courts from Federal prosecution. 

The letter goes on to say: 

The question of good faith must be determined with reference to the decisions of 
the courts upon the subject and having jurisdiction thereof so there can be no good 
faith in acting in direct conflict with the known decisions of the courts, although in 
the absence of any such decisions such defense might be made. In the case against 
Beall and Quinn, who were convicted in the Federal court at Enid, in 1911, for 
violating section 19 of the Federal Criminal Code in enforcing the grandfather law 
at the general election in November, 1910, the defense of good faith was attempted, 
although without success, as the verdict of the jury disclosed. However, in that case 
at the time the act was committed which caused a prosecution— that is, in November, 
1910— no Federal court had passed upon the law. 

Furthermore, all precinct election officers are quasi-judicial officers in a quasi- 
judicial capacity, and being officers of inferior and restricted jurisdiction are all 
bound by the decisions of the Federal courts declaring the law unconstitutional 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 15 

when applying the same to negroes desiring to vote for Members of Congress and 
electors for President, and the defense of good faith will not protect them from prose- 
cution for enforcing the law in direct conflict with the Federal decisions. 
Respectfully, , 

Homer N. Boardman, 

United States Attorney. 

Now, that circular beginning, "Talk it over with your wife, 
Mr. Election Official," and that letter of the United States attorney 
were inclosed in the same envelope by Mr. Morgan's ex-campaign 
manager, who subsequently became United States attorney, and that 
matter was transmitted to each and every precinct election officer 
within the second congressional district where there were negroes 
who claimed the right to vote. 

Mr. Stafford. You just stated that this letter which went with 
the circular letter was inclosed by the United States attorney. 

Mr. Giddings. No; I did not mean to say that if I said it. It 
went to every election official, a letter signed by the United States 
attorney and this certificate. There is no denial in this record by 
the United States attorney, who was living at the time this record 
was made, at the time the testimony in this case was taken, and who 
is still living, so far as I know, that he did not sign that letter and did 
not authorize its publication. 

The Chairman. Was there any contention to that effect; is there 
any contention that there is any doubt about that letter being signed 
by the United States attorney? 

Mr. Morgan. I think there is no doubt that Mr. Boardman wrote 
that letter, but there is no evidence that he circulated it. 

The Chairman. I just wanted to find out if there was any conten- 
tion in regard to the letter being signed by the United States attorney. 

Mr. Giddings. Evidence that it was to be circulated was in this 
letter. 

Mr. Morgan. Not that Mr. Boardman circulated it. 

Mr. Giddings. We contend he authorized its circulation. 

The Chairman. We will hear you on that. 

Mr. Rogers. Just before you pass on to that, I would like to ask you 
a question. Do you stand with the law as disclosed in the last para- 
graph of this letter, and do you think that is an exact statement of 
the law ? 

Mr. Giddings. No, sir, I do not. I do not think if a man acts in 
good faith, if he has no criminal intent, that the humane American 
decisions ever in any conceivable way would authorize a conviction 
and stigmatize him as a criminal. 

Mr. Oglesby. You do not mean to say that ignorance of the law 
would excuse him ? 

Mr. Giddings. No, sir; but I say if a man acts in good faith in the 
enforcement of even an unconstitutional law you can not convict 
him. If he acts in good faith in the enforcement of a State law, 
that the defense of good faith ought to uphold him, because it is 
certainly an anomaly that in free America a man should be punished 
as a criminal for acting in good faith. I do not think that is the 
humane side of the jurisprudence of this country. 

Mr. Stafford. Will you not inform the committee what officers 
were to be elected at the general election in November, 1912, when 
Mr. Morgan and Mr. Carney were candidates for Congress? 



16 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Giddings. If you will look on page 140 of the record you will 
find the list set out. These were the officers who were voted for: 
Corporation commissioner; presidential electors, State at large; 
United States Senator; Congressman, State at large; justice of the 
supreme court of the first district; judge of the criminal court of 
appeals of the seventh district; Representative in Congress in the 
second district; State senator in the sixteenth district; and repre- 
sentative. There were also initiative and referendum questions to 
be voted on in addition to the candidates for the offices which I have 
named. 

Mr. Stafford. It is highly probable that some person connected 
with these other officials besides the contestee might have been 
sponsor for this matter ? 

Mr. Giddings. You do not mean the Democrats of my State? 

Mr. Stafford. I mean on the Republican ticket; might have been 
responsible for this letter ? 

Mr. Giddings. They might have been; they are all on the same 
ticket, working together in harmony with each other. 

Mr. Stafford. I have known of many times when I have not 
been working together with the county officials. 

Mr. Giddings. It is too plain to need any further statement. 

The Chairman. Suppose you argue this point; suppose this com- 
mittee should find that Mr. Morgan did not know anything at all 
about that circular having been issued. What argument have you to 
offer fixing, as you say, the responsibility for the acceptance of the 
results of it? 

Mr. Giddings. The first proposition, as I have tried once or twice 

The Chairman (interposing). We are not finding anything now; 
suppose we assume 

Mr. Giddings (interposing). I say this committee does not have to 
find that, and yet there is not a word in this record, from the time of 
the publication of these circulars and their being sent to the election 
officials, that he ever opened his mouth in protest against it, and he 
was the direct beneficiary of it. Not only that, but it is immaterial 

Mr. Stafford (interposing). Before you proceed, I would like to 
ask you this: Were there any contests in regard to these other can- 
didates arising out of the facts which are the basis for your contest 
here ? 

Mr. Giddings. Both negro districts in Oklahoma have contests be- 
fore this committee. 

Mr. Stafford. I mean in regard to the State and county officials. 

Mr. Giddings. The State went Democratic, and there was no need 
of it. 

Mr. Stafford. In regard to the county officials, was there any 
contest pending, or was there any developed by reason of this ? 

Mr. Giddings. No, sir — yes, there was in Blaine County; there 
were some contests there growing out of this, it being contended that 
the county election board threw out some precincts there to which 
reference was made by the chairman. 

Mr. Stafford. Was that passed upon by the courts, or was it 
dropped ? 

Mr. Giddings. I think the courts held they had no authority to 
throw out the boxes; that the county election board was acting in a 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 17 

ministerial capacity, and that while the precinct officials had quasi- 
judi ial functions, that the others did not. 

The Chairman. Mr. Giddings, there is something in this record 
and in the briefs of both parties as to the claim by Mr. Morgan of more 
votes than he is credited with. 

Mr. Giddings. I am coming to that. I have called your attention 
to the law and to the opinion of the United States attorney and to the 
warning circular, and I now want to call your attention to an amended 
return made by the election officials, nearly every one of the officers, 
after the election. I did not set out all the returns in the testimony 
for this reason, that it would have made a very bulky record, and I 
thought that one return would be sufficient for the record as a sample 
of all the returns amended or rather thought to be made. This is 
the amended return, as set out on page 9 of the record: 

State of Oklahoma, Oklahoma County, ss: 

, of lawful age, declares that at the general election held in the State 

of Oklahoma on the 5th day of November, 1912, he was the duly qualified, appointed, 

and acting of Precinct, ward, Oklahoma City, said State. That 

an election was held in said precinct on that day; that intimidation was used against 
the election officials in said precinct, and threats of criminal prosecution made to the 
end that many negroes who would be illegal voters might vote; and that at said 
election in such precinct so many negroes did vote under the above-mentioned cir- 
cumstances that it is impossible to determine what the vote and result in said precinct 
would have been had not such facts and conditions existed as above stated; and this 
affiant asks that this amendedreturn be made a part of the original returns from said 
precinct, and that said vote be not canvassed and the result in said precinct be not 
declared. 

That amended return was made by all the precinct election officers 
after the polls had closed and after the returns, as originally made 
by them, had passed out of the hands of the precinct officials into 
the hands of the county election board. 

The courts have held, particularly in Massachusetts, that a pre- 
cinct election official may amend his return previous to the time it 
leaves his hands, and if it is sought to be amended after that in 
regard to that there seems to be some difference of opinion among 
the courts. 

Mr. Stafford. How soon after the election were these amended 
certificates made ? 

Mr. Giddings. Immediately afterwards; just a few da}^s after- 
wards. 

I am now going to show you, Mr. Chairman, what effect this thing 
had upon the election officials in this district. I say that that circular 
letter was an infamous document, and that it had no business being 
sent by anybody to the election officials of my State, and that by no 
species of reasoning can such an instrument be justified or allowed 
in any jurisdiction. 

I am going to argue the proposition later as to whether Mr. Morgan 
had anything to do with this or not, as to whether or not it can be 
charged to him legally, if not morally and personally. 

Take the first point, Mr. Chairman. I am going to run through 
this printed testimony in the case. First I want to take up the testi- 
mony of W. I. Davis, on page 31 of the record. He testified in regard 
to Dewe Township, in Oklahoma County. 
46996—14—2 



18 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Q. Are there any negroes there in that precinct?- — A. There is. 

Q. Were there at that time — the general election of 1912? — A. There was. 

Q. Can you approximate about the number of negroes in that township at that 
time over the age of 21? — A. Over the age of 21 — male? 

Q. Yes; male. — A. No; I don't know how many male negroes there is in Dewe 
Township. 

Q. Do you know about how many?-— A. Well, my best judgment, I would say 
that there is about 60. 

Q. Is there more than one voting box in Dewe Township? — A. No, sir. 

Q. You may state what effect, if any, the receipt of those notices had upon you 
in the enforcing of election laws of the State. — A. They made me afraid to enforce 
the grandfather clause. 

Then, in the next answer, at the top of page 32, the witness said: 

A. There was about — there was 48 negroes voted in the general election, I believe; 
there was quite a number, but I am not able to state how many that voted by filing 
with me what they called qualifications. And there were some admitted they could 
not qualify, and I told them I would not prevent them from voting; that is, I mean 
to say that there was a few that did not pretend to try to qualify. There was two 
that tried to qualify and failed. I told them — they asked me then for permission to 
vote — I said I won't tell you you shan't vote, and therefore I was afraid to interfere 
with them voting. 

And then there were presented some specimens of the hand- 
writing of those negroes. Then, as set out on page 32 of the record, 
this testimony was given : 

Q. I will ask you if those are specimens of the handwriting of negroes, commonly 
called colored people, who voted in Dewey Township at the last general election? — 
A. They are. 

Q. If it had not been for the receipt of Exhibit A and Exhibit B would you have 
permitted those negroes to have voted under the laws of this State? — A. I would not. 

Q. Mr. Witness, after you made your original return to the election board from the 
general election of November, 1912," did you file with the secretary of the election 
board of Oklahoma County any amended returns? — A. I filed with the secretary of 
the election board an affidavit setting forth that under the laws of the State there 
had been illegal voting in that precinct. 

Now, gentlemen, I want you to listen to this: 

Q. Without the number of illegal votes in that precinct at the last general election 
could you determine what the result would have been of the votes for the candidates 
ior Congress from the second congressional district of Oklahoma, to wit, John J. Carney 
and Dick T. Morgan?— A. No; I could not. 

Q. Do you know what were then and there, to wit, at the last election, the politics 
of these negroes? — A. How is that? 

Q. Do you know the politics of these negroes who voted there? — A. I do. 

Q. What were their politics? — A. Republican, politically. 

Q. Was there any registration of voters in your township, to wit, Dewey Township, 
previous to the last general election? — A. Registration? 

Q. Yes. — A. No; there was no registration. 

Now, then, Mr. Chairman, I call your attention to further testimony, 
on page 35, where that point is further amplified by the testimony in 
that regard. He had received this letter and knew that Federal 
prosecution was inevitable, and he was a man of family, and he knew 
what had previously happened, and he said, in answer to a question: 

A. But the fact that there was a United States attorney's name to this and that 
two men had been prosecuted in Oklahoma and convicted for attempting to enforce 
this law was the reason why I let men vote there who I did not consider had given me 
the proper qualifications. 

Then, farther down on page 35, this question was asked: 

Q. Mr. Witness, you were asked if the clerk out there and the other election officials 
protested against giving these negroes ballots. I want to ask you if you do not know 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 19 

as a matter of fact the reason they did not protest was on account of these very cir- 
culars?- — A. That is the reason I did not protest. 

Q. Don't you know, as a matter of fact, that is the reason the other Democratic 
members of that precinct election board did not protest? — A. Jo the best of my 
knowledge, "I believe that is the reason. 

Q. What was the mood of these negroes when they came to the polls that day? 
Were they in a sullen and angry mood or like ordinary voters? — A. They showed a 
disposition to be considerably wrought up over the fact that they thought the grand- 
father clause, as it is termed, was being pushed on them illegally and that they was 
being discriminated against. Some of them was sullen and wrought up considerable. 

Q. Mr. Davis, state what, if anything, you saw that led you to believe these negroes 
were wrought up? — A. One of them wrote my name — my name and address — right in 
my presence and said something to another negro. I didn't exactly understand all 
he said, but part of it was that we see about this matter. 

Q. Did they threaten you with any physical harm? — A. No; I wasn't threatened 
to my face — not personally. 

Q. Now, this occasion when this negro took your name — had you just turned down 
any negro then for failure to read and write — failure to go through the tests? — A. No, 
no; I hadn't refused any negroes to vote, the right to vote at all. 

That is in Dewey Township. Now, take the next witness, Mr. T. J. 
Clark. 

Mr. Stafford. What county is this you are referring to now? 

The Chairman. All these references, as I understand it, are to 
occurrences in Oklahoma County ? 

Mr. Giddings. I have simply taken this testimony to illustrate 
the effect of those threatening circulars upon the election officials. 

Now, in the testimony of Mr. T. J. Clark, on page 37, this testimony 
occurred : 

Q. What effect, if any, did they have upon you in the enforcement of what is com- 
monly called, or termed, the grandfather clause of the State? — A. No; I didn't have 
anything to do with the enforcement, but I was afraid that we would have trouble. 
We didn't only get them notices, but we got others — I got other notices that there 
would be trouble there. 

Q. What were those other notices? — A. The night before election one of the count- 
ers came to me and told me — he said, I wish I could get off this board; there is going 
to be trouble there tomorrow." 

Q. Did you fear trouble there the next day? — A. Yes. 

Then, on page 38 of the record there was this testimony: 

Q. Do you know how many negroes over the age of 21 years — male negroes — resided 
and had resided in that township for over a year previous to the last election? — A. 
No; I could not say just how many. 

Q. What is your best judgment of the number? — A. That man that polled the 
township two years ago told me there was 88 . 

Q. What is your best judgment? — A. There is probably somewhere between 55 
and 60. 

Now, then, Mr. Chairman, we come to the testimony of Lewis 
Vorel, who was located in one of the large negro precincts. On page 
41 we find this testimony : 

Q. Approximately state how many negroes there are in your precinct, male, over 
the age of 21 years, if you know? — A. Well, the way I have of knowing is from the 
way they turn out at elections, and there is about two-thirds negroes in our township; 
of voters we have right here 120 negroes and 60 odd whites. 

Q. How many of these negroes presented themselves at the election in November, 
1912, if you know, to vote? — A. Why, I think right near the number I stated, 120, as 
near as I remember. 

And then he goes ahead and tells how he did not enforce it. Then 
on page 42, in speaking of this circular letter, this question was asked: 

Q. What effect, if any, did it have upon you? I mean in the performance of your 
official duties? — A. Well, I did not like to take the responsibility on the face of that, 



20 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

and we handled the election in a different way from what we would have if that 
hadn't come up. 

Q. In what way did you handle it different? — A. We let 14 or 15 negro voters cast 
their ballots on their own responsibility that we would have denied, they claiming 
and not being able to read and write. 

Q. How many negroes, if you remember, did you give the tests to that day? — A. 
Well, not very many; not over 10 or 15, outside of these. We had been acquainted 
with those parties, and they had been refused ballots at previous elections, two years 
before. 

Now I come to Luther Township, and quote from the testimony of 
Mr. B. B. More, who testified that he was clerk of the election, and 
then speaking of Exhibits A and B, he was asked this question: 

Q. Do you know what effect, if any, the receipt of that Exhibit A had upon the 
election officials of your township as to the enforcement of the law commonly known 
as the grandfather clause? — A. We let people vote that we would not otherwise have 
done if it had not been for that warning. 

Q. For that reason? — A. Well, we thought we would get in trouble with the Federal 
law if we did not. 

Q. How many negroes over the age of 21, male negroes, then and there resided and 
had so resided over one year previous to the last general election, if you can approxi- 
mate?— A. About 130— about 120 or 130. 

Then, at the bottom of page 47, this testimony was given: 

Q. If it had not been for the circular letter you have described would the tests have 
been required in your township? — A. I think I would. 

Now, Mr. Chairman, with all due deference to Mr. Morgan, I call 
attention to the testimony on page 50: 

Q. When these negroes appeared there to vote did any of them ask in particular for 
a ballot to vote for any particular candidate? — A. They did. 

Q. For whom? — A. They asked me to give them a ballot. Said they wanted to 
vote for Dick T. Morgan. I told them I didn't have any special Dick T. Morgan 
ballots, but I could give them a national ballot and they could vote it for whoever 
they pleased. 

Mr. Stafford. How many ballots did you have ? Did you have a 
separate ballot for the national ticket, or just one ballot for all of 
them? 

Mr. Giddings. It was all one ballot. 

Mr. Morgan. County ticket was separate. 

Mr. Giddings. Yes; the county ticket was separate. 

The Chairman. Did you have a blanket ballot ? 

Mr. Giddings. You either vote straight or you vote for the men 
you want to vote for. The county ticket was separate from the 
State and national ticket. 

The Chairman. But it is all one ballot? Each particular party 
has a ballot ? You have one ballot for each party ? 

Mr. Giddings. With all the tickets on it ? 

The Chairman. With all the tickets on it. 

Mr. Giddings. That is, for the State and national tickets at the 
last election, if I remember correctly. 

Mr. Morgan. That is right. 

Mr. Giddings. For the county ticket we had a separate ballot. 
They could enforce the grandfather clause on the county ticket, 
because they were not standing in the shadow of a Federal prosecu- 
tion. 

The Chairman. My point is this: There was only one ballot put 
in the box, and the man had to vote — the State and Federal officers 
were on one ballot and the county officers were on another ? 



CONTESTED ELECTION CASE OF CARNEY VS. MOEGAN. 21 

Mr. Giddings. Yes, sir. 

The Chairman. So there were two ballots ? 

Mr. Giddings. Yes, sir. 

The Chairman. For instance, a man could go in there and vote 
the State and Federal ticket and not vote the other ticket if he did 
not want to ? 

Mr. Giddings. That is right. 

The Chairman. And I could vote two of them if I wanted to ? 

Mr. Giddings. Yes; you could vote either one you wanted to, 
either the State and national ticket, and you could vote for the 
county officers on another ticket — on another ballot. 

Mr. Oglesby. Was the grandfather clause enforced, so far as the 
county ticket was concerned ? 

Mr. Giddings. Just as far as we could enforce it. 

Mr. Oglesby. You do not claim there was any attempt at intimi- 
dation with regard to that ? 

Mr. Giddings. There could not be. 

Mr. Oglesby. I understand that, but I thought, perhaps, there 
might have been some confusion in the minds of the election officers, 
as to whether or not they might have been afraid of prosecution. 

Mr. Giddings. We have tried to get men of as sound discretion as 
we could, and the fact that they were election officers indicates that 
they were considered men of discretion. 

Mr. Oglesby. You think that the election commissioners under- 
stood the distinction between the county and State tickets ? 

Mr. Giddings. Yes, sir; we tried to advise them. I had communi- 
cated with every one of them. I was the attorney for the Democratic 
State central committee. 

Mr. Oglesby. Is there any tabulation here in the record which 
would show the difference between the vote cast on the State Federal 
ticket and the vote cast for the county ticket ? 

Mr. Giddings. I think there is something that would indicate it to 
some extent in some of the exhibits of Mr. Morgan. You will note on 
page 90 the vote for the corporation commissioner. 

Mr. Morgan. On page 181 there is a tabulation of all of Blaine 
County, showing that there was no difference in the vote. 

Mr. Stafford. You stated that you advised the various officials 
in your capacity as attorney for the Democratic State central com- 
mittee ? 

Mr. Giddings. I did. 

Mr. Stafford. As to what ? 

Mr. Giddings. I advised them, so far as the county ticket was 
concerned, they did not stand in danger of Federal prosecution — 
that they were enforcing a State law and that they should enforce it 
to the letter. 

Mr. Stafford. What did you advise them as to the national 
ticket ? 

Mr. Giddings. I advised them that in my judgment the law was 
valid; but I would not advise them to take the chances of going to 
the penitentiary — that that was with them. 

Mr. Stafford. You sent that notice to all the election officials? 

Mr. Giddings. Those with whom I conferred, and I said I would 
not advise any man to take chances of a Federal prosecution, with a 
partisan court and a partisan judge. 



22 CONTESTED ELECTION CASE OF CARNEY VS. MOEGAN, 

The Chairman. Did you sit down and send that notice out to all 
those officials ? 

Mr. Giddings. My telephone was busy for several days. I do not 
believe I put that advice on record. I did not want to get tied up 
in the Federal court. I advised the officials who had to do with the 
Federal ballot, the National ballot and the State ballot that they 
ought to be careful, and it was put up to them whether or not they 
should decide to enforce that law; but I told them I would not ad- 
vise them to take any chances. 

Mr. Stafford. Did your committee send out a circular letter to 
any of your party associates, expressing your opinion along those 
lines ? 

Mr. Giddings. All I know is that the chairman of the State com- 
mittee consulted with me, and we consulted with the governor, and 
the governor, from the stump, advised them to enforce the law 
with regard to the counties. 

Mr. Russell. May I ask you a question there for my own in- 
formation ? 

Mr. Giddings. Certainly. 

Mr. Russell. As I understand it, the record shows and you claim 
that about 900 negroes voted in that district ? 

Mr. Giddings. One thousand seven hundred and forty. 

Mr. Russell. Is there any effort to show by the record in the 
case how many of them were disqualified under the grandfather 
clause ? 

Mr. Giddings. By the best evidence of which this case is suscept- 
ible, there was. 

Mr. Russell. Is it the contention that there are enough who 
voted to have defeated him ? 

Mr. Giddings. Yes, sir; to change the result. The good votes 
were there intermingled with the bad votes, and without that the 
result would probably have been different. We have the records 
here of about 900 more negroes which are not in the printed record, 
and we did not put them there because it would have made the 
printed record very bulky. I took the deposition of the secretary of 
the county election board and I proved how they had registered. I 
took the stubs of the election where they voted and their politics, 
and then I further fastened the responsibility upon the contestee, 
so far as possible, by showing that there was this intimidation in 
every one of the precincts where the negroes voted. 

Mr. Russell. You contend, first, that there were enough illegal 
voters, if that law is valid, who voted for Mr. Morgan to accomplish 
his election, and if there were not enough illegal voters, that it was 
done by intimidation ? 

Mr. Giddings. Yes, sir. 

Mr. Rogers. You say there were 1,700 negro voters? 

Mr. Giddings. That is admitted in the pleadings. 

Mr. Rogers. Is there any attempt to show what proportion of that 
number were illiterate ? 

Mr. Giddings. There is the admission of about 400 who are illiterate. 

Mr. Morgan. Not of the voters, but the illiterate voters in the 
whole district. 

Mr. Giddings. You take up each county, and you admit that there 
are so many illiterate voters in this county. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 23 

Mr. Morgan. Not those who voted. 

Mr. Stafford. Formerly you said there were 1 ; 740 illiterate voters, 
and now as I understand you, your statement is, in response to a 
query by Judge Russell, that there are about 1,740 colored voters in 
the entire district ? 

Mr. Giddings. Oh, no. 

Mr. Rogers. Do you contend that there are more than 1,740 
colored voters ? 

Mr. Giddings. There are, unfortunately, more than that, but the 
record does not show how many. I guess there must be more than 
that in the three big negro counties in this district. There is no 
denial of that fact in this answer and cross petition. I think the alle- 
gation is that there were 1,740 voters. 

Mr. Rogers. Does that include any who may have qualified under 
the grandfather clause as being capable to read and write ? 

Mr. Giddings. I think it does. 

Mr. Rogers. What I am trying to get at is, what the evidence in 
the record shows in regard to what proportion of them are illiterate. 
Of course a negro man votes if he is literate, even under this law ? 

Mr. Giddings. I do not agree with that. I do not believe the negro 
was ever granted the right of franchise. 

Mr. Rogers. That is in regard to the fourteenth amendment 
suggestion ? 

Mr. Giddings. Yes. 

Mr. Stafford. Assuming the constitutionality of the fourteenth 
amendment, that amendment having been adopted, and it is not in 
issue, and that the grandfather clause 

Mr. Giddings. I do not assume that; I am not waiving any point 
I make in this brief, or any contention I have made at any time. 

Mr. Stafford. I am trying to put a hypothetical question. 

Mr. Giddings. I thought you supposed I was waiving that point. 

Mr. Stafford. No, sir. I do not want to take any such unfair 
advantage of you. I say, leaving out of consideration your position 
as to the constitutionality of the fourteenth amendment to the Consti- 
tution of the United States, and assuming that the grandfather clause 
of the State constitution is alone applicable and is constitutional, do 
you still contend that there are not some colored voters qualified under 
that grandfather clause to vote ? 

Mr. Giddings. I am going to try to make that plain. I contend 
that the vote is so intermingled with the bad vote that you can not 
tell what the result would have been without that vote. 

I am going to show you that the election has not been free and equal, 
and it ought to be declared invalid and void. We are here to establish 
a principle, the principle of the right to govern ourselves without 
Federal interference. 

Mr. Russell. Is there any case pending in the Supreme Court of 
the United States to test the validity of the fourteenth amendment 
to the Constitution of the United States ? 

Mr. Giddings. No, sir. 

Mr. Russell. That is not involved in the case now being consid- 
ered? 

Mr. Giddings. No, sir; it is not raised in that case. 



24 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Stafford. Then the Supreme Court has upheld the constitu- 
tionality of the grandfather clause? 

Mr. Giddings. Yes, sir. 

Mr. Stafford. Entitling colored men who could quality under that 
to vote? 

Mr. Giddings. It has upheld it, in so far as it does not discriminate 
nor abridge the right of the citizens to vote, but the question of the 
validity of the legal adoption of the fourteenth and fifteenth amend- 
ments was not even incidentally raised in any of those cases. 

Now, then, I have the testimony of Mr. Clark, which I have already 
read to you. I just want to read you a few excerpts and then I want 
to take up the law and see if I can not demonstrate that this intimida- 
tion is sufficient to invalidate this election. 

Taking Mr. Clark's testimony at page 47, I do not think the com- 
mittee ought to hold the contestant to a hide-bound mathematical 
rule that he must prove by some system of mathematics that with this 
vote out he got more than the contestee, but if the result is so sur- 
charged with fraud and intimidation, it seems to me it is up to the 
contestee to show that the intimidation had no bearing upon the result; 
that the burden is upon him, and that he is entitled to his seat upon 
that, or at least that the election be declared invalid. 

Mr. Oglesby. I want to say for one that I regard this latter, this 
attempt to intimidate, as being most reprehensible, but I do not think 
it ought to be charged to Mr. Morgan unless there can be some way 
in which he can be connected with it; but no matter how reprehen- 
sible it is, what I would like to have you state to us is to have you 
show to us in some way how your client's interest is adversely affected 
if the result of this intimidation did not operate to change the result 
of the election. 

Mr. Giddings. Of course if it did not operate to change the result 
nobody is adversely hurt and the contestant can not recover, but it 
is presumed to have that same sort of an effect. 

Mr. Oglesby. How can we get at that unless you show by some 
kind of tabulation of the votes cast that illiterate, disqualified voters 
were permitted to cast their vote? 

Mr. Giddings. I see your point, Mr. Oglesby. I am getting at it as 
fast as I can. I am trying to get at it. I have already shown you 
about 250 in this record, and I have only been over two or three pages 
of it. 

Mr. Oglesby. I do not mean to disconcert you in your argument, 
but I have here a memorandum to ask you this question, as to 
whether or not you had attempted to make any tabulation of the 
illiterate voters whom 3^ou claim voted, but who should not have been 
permitted to vote, so that we can have some idea as to the extent to 
which those votes made a difference. 

Mr. Giddings. I am coming to that. I call your attention to the 
fact that all the record is not here; that is, that the record of all the 
negroes who voted there, although it is in the typewritten record, was 
not incorporated in this printed record, because it would have made 
a very bulky record. 

Mr. Rogers. You are taking out these negroes simply because 
they are negroes, regardless of whether they can read or write. 

Mr. Giddings. I am not doing that alone; I am also contending 
that this vote was so interspersed with the good vote, whether it was 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 25 

the negro vote or the white man's vote, that you could not have 
determined what the result would have been without that illegal 
vote, and I will cite you authorities to sustain that proposition. 

Mr. Oglesby. Do you intend to confine your contention to that 
proposition ? 

Mr. Giddings. I have two contentions. My first contention is 
that enough illiterate negroes voted to change the result in favor of 
the contestant, and even if that be not so, that these illiterate people 
so voted in violation of the constitutional amendment, were so 
intermingled with the good vote in the several negro precincts that 
without that vote you could not have determined what the result 
would have been. 

Mr. Stafford. If a white man would cast a vote which would be 
disqualified, therefore you would eliminate all the white men's votes 
and vitiate the election completely? 

Mr. Giddings. How are you going to get at the justice of the entire 
process ? 

Mr. Oglesby. You claim that the evidence is in the record and we. 
can dig it out and ascertain for ourselves how many of those votes 
were illiterate ? 

Mr. Giddings. I think so; if you take the typewritten record and 
the record here I think you will find that the intimidation was so 
general in its nature that this election was not a free and equal 
election. 

The Chairman. I think this is your contention: There is some law, 
I do not know how much, to uphold it, or where it is, which shows 
that there is a distinction between intimidation and fraud. In fraud 
you show the vote; in intimidation you show that a condition existed 
which precluded the possibility of a free election, and from that you 
come to the conclusion that there was not even a bad election, that 
there was no election. I think that is your contention. 

Mr. Giddings. I have tried to make that contention. I do not 
think I made it as clear as you have made it, Mr. Chairman, but I 
intend to support that contention with authorities in my brief. 

The Chairman. I am not arguing whether that is good or bad. 

Mr. Oglesby. There is this condition, as I understand it, that an 
intimidation which would prevent voters from voting, and therefore 
make it impossible to determine how many would have voted if they 
had not been intimidated, might vitiate the election, and here is a 
species of intimidation charged which was intimidation not against 
the voter, but against the commissioner, or the election official, which 
intimidated him to the extent that he permitted men to vote who 
it is now contended were not entitled to vote. 

If that is true, then it seems to me that there must have been 
some method whereby they could get an approximation, and they 
should present an approximation of how many of those people were 
permitted to vote and the record of the intimidation against the 
election officials; that is, people who should not have been allowed 
to vote, and my question is this: If this record discloses how many 
of those votes were cast which should not have been permitted to 
have been cast, and a count of those would show that enough of 
those votes were cast to change the result of the election, I am willing 
to go through the record to try to dig it out; but if the record does 
not disclose, or does not purport to disclose, the number who voted 



26 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

who should not have been permitted to vote, a number which would 
not be enough to change the result of the election, I do not want to 
assume the burden of going through the record and digging those out. 

Mr. Giddings. I think I can answer that. Of course, I did not 
expect to take so much of your time in arguing this matter, Mr. 
Chairman. 

Mr. Oglesby. This is an important matter. I would be willing 
to do that amount of work if that work will produce the result. 

Mr. Giddings. I did not intend to take so much of your time, but 
if you will pardon me for saying so, Mr. Chairman, the time has been 
a good deal taken up by questions by the members of the committee. 

Mr. Oglesby. I think we understand that, and I think the atti- 
tude of the committee will be to give you all the time necessary to 
thoroughly argue this case. 

Mr. Giddings. I would like to call your attention to the rule laid 
down in Congress with regard to the matter of intimidation — a rule 
which has been followed at all times by the Democratic Members — 
and I think it presents my proposition with regard to intimidation. 
You seem to be patting the burden on me, while the burden clearly 
belongs upon the party for whose benefit the intimidation was used. 

Mr. Oglesby. I agree to that, and I think it will have a great deal 
of force if the intimidation operated to prevent men from voting 
whom you might claim were entitled to vote, because in that case 
it would be impossible to ascertain how many would have voted but 
for the intimidation. Here is a case where men voted who should 
not have been allowed to vote, because the election officers were 
intimidated. That number may be possible of ascertainment. 

Mr. Giddings. Suppose it is not? 

Mr. . Oglesby. If the record presents the facts which will enable 
us to make any approximation of it, I am willing to go through the 
record and ascertain it; but if it does not, I do not want to do all that 
work and then not get any result from it. 

Mr. Giddings. Suppose it does not show? It is pretty hard to 
get it on a mathematical basis. It would be pretty hard to do that. 
These negroes are let in there everywhere, and you let them all vote. 

Mr. Oglesby. If that is the case I do not want to expend any 
energy in that branch of the case. 

Mr. Giddings. I will give you a definite answer on it. I will try 
to disabuse your mind of that. 

The Chairman. These questions are not asked you to put you in 
any embarrassing position. 

Mr. Giddings. I understand that, Mr. Chairman. 

The Chairman. We want you to give us as full an argument as 
you can. 

Mr. Giddings. The law in regard to intimidation, as laid down in 
the Tenth A. and E. (E. N.), page 776, is as follows: 

Violence and intimidation — 1. Effect in general. — It is an old adage of the common 
law that elections should be free, and anything which prevents the free exercise of 
the right of suffrage by the qualified electors will be a sufficient ground for the setting 
aside of the election of any county or State where the rules of the common law prevail. 
When persons are prevented by force from casting their ballot it can not be said that 
there has been an election, although there may have been the form of one, and the 
people should not be bound by such a proceeding. 



CONTESTED ELECTION CASE OE CARNEY VS. MORGAN. 27 

And then again, in Tenth A. and E. (N. E.), page 778, this rule is 
laid down: 

By whom intimidated. — It is not necessary that the persons who commit the violence 
or intimidation should be connected with the candidate; but if there is such violence 
that the voters can not safely deposit their votes the election should be set aside, 
regardless of the relations of the persons by whom it was committed. 

A fortiori, if there be such an intimidation that the election offi- 
cials may not properly conduct the election, the intimidation is even 
stronger. Is this a free election? Is this such an election as the 
common law, or the laws of the United States or of any State in the 
Union intend or intended to exist ? 

There are many cases cited in the Digest of the Contested Election 
Cases in the House of Representatives of the United States similar 
in point of law to this one. In the minority report in the case of 
Hurd v. Romeis, it was held that the burden shifts to the shoulders 
of the contestee, and when this intimidation is shown he must show 
that it did not affect the result. Even granting that this be a harsh 
rule, it certainly must be admitted that some degree of proof should 
be introduced upon his side to show that it had no material effect 
upon the result. In the minority report in the case of Hurd v. 
Romeis, in the Forty-ninth Congress, it was said: 

Where intimidation shown, burden on other party to shoiv result not affected. "Where 
intimidation is practiced over men sufficient in number to affect the result the burden 
of proof is devolved upon him in whose interest the intimidation is done to show that 
the intimidation did not affect the result. If this proof be not made the intimidation, 
and the intimidation is so interwoven with the vote that it is impossible to separate 
with reasonable certainty the good from the bad vote, the whole precinct must be 
rejected." 

In the case of Smalls v. Tillman, in the Forty-seventh Congress, the 
question of violence arose, and the committee held as follows : 

Where violence was prevalent throughout a county, the canvass and count of the 
vote involved in inextricable confusion and fraud, and the record illegally sup- 
pressed, the returns from the county were thrown out. 

Innumerable cases are cited in the contestant's brief along the 
same line. 

With this number of people voting down there, getting in the polls 
and voting as they pleased, and with some knowledge, at least, per- 
haps, that the Morgan party assisted them in sustaining their posi- 
tion that they were entitled to vote, how are you going to compute 
the vote to a mathematical certainty? All the law requires is the 
best evidence of which the case is susceptible. Of the negroes who 
went in there and voted, as the record shows, for Mr. Morgan, each 
one of them, as a Republican election official testified, did not attempt 
to qualify them, that he was afraid to do so, that he refused to take 
the chance of going to the penitentiary, and if you show that you 
have there an admission of the number of these votes in the district, 
and the number of all the illiterate negroes admitted in the pleadings, 
and how are you going to estimate the result if there was a sufficient 
amount of intimidation to affect the result there, and throw upon the 
shoulders of the contestee the burden to show that the intimidation 
did not affect the result. 

Mr. Rogers. Have you tried, or are you prepared to show, that the 
intimidation may be through the mind as well as through the body ? 



28 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Giddings. Oh ; yes, I should think it would be. I do not think 
there could be any greater intimidation than that of a man who is 
put in fear of Federal prosecution. You take a man with a family in 
my country and tell him if he does not let the negro vote you will 
put him in the penitentiary, he is not going to take a chance like that. 
He will not do that. Certainly, you can not put the blame and respon- 
sibility on us for this situation. 

The Chairman. Some of the members of the committee desire to 
go to the floor of the House, Mr. Giddings, and I think we had better 
adjourn at this time. We will meet again to-morrow morning at a 
quarter before 10 o'clock, when we will be glad to have you resume 
your argument. 

(Thereupon, the committee adjourned to meet to-morrow, Thurs- 
day, April 30, 1914, at 9.45 o'clock a. m.) 



Committee on Elections No. 2, 

House of Representatives, 

Thursday, April 30, 1914. 
The committee this day met, Hon. James A. Hamill (chairman) 
presiding. 

The Chairman. You may proceed, Mr. Giddings. 

ARGUMENT OF E. J. GIDDINGS, ESQ., COUNSEL FOR 
CONTESTANT— Continued. 

Mr. Giddings. Mr. Chairman, I had hoped that Mr. Oglesby would 
be here this morning because of the fact that he asked two questions 
yesterday which, in my judgment, are very pertinent to the determi- 
nation of this controversy. 

The first question was that though this warning circular could not 
be countenanced, that it seemed that some connection of Mr. Morgan 
with its issuance and receipt by the several precinct election officials 
of the State should be shown. 

The second was that there ought to be some method by which 
a mathematical tabulation could be made to show that without this 
illegal vote the contestant would have had such and such a majority 
or plurality, as in this case it would be, there having been several 
candidates outside the Democratic and Republican nominees. 

I came prepared this morning to further answer those questions, 
but before I do that I desire to go further with the testimony of the 
several precinct election officials, to show you how, one after another, 
they testified, in substance, as to what effect the receipt of this letter 
and this circular had upon them in the enforcement of that law. 

The testimony of Mr. Kenyon on page 54 of the record merely goes 
to the fact as to how he knew the negroes were Republicans. I shall 
discuss how I know the negro is a Republican from this record, and 
also to prove that it indubitably demonstrates that they were 
Republicans. 

The Chairman. All that is in the record ? 

Mr. Giddings. Yes, sir. Before I get through with this argument 
I shall show that. 

Now, coming to the testimony in regard to registration, to what 
seems to be one of the main defenses, it being contended that if they 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 29 

passed by the registration officials, that at least while it would have 
been conclusive proof of their qualification, or at least persuasive, of 
the fact that they were qualified; and I stated yesterday that I 
wanted to show you that not only upon the precinct election officials 
was this intimidation practiced, but it was practiced absolutely even 
previous thereto, upon the registration officials to such an extent 
that we had hard work to get men to serve in that capacity. 

I quote now from the testimony of Mr. E. A. Ringgold, the secre- 
tary of the county election board of Oklahoma County, which you 
will find on page 60 of the record: 

Q. Do you know whether or not there was any hesitancy on the part of those pre- 
cinct officers with reference to qualifying negroes, commonly called colored people? — 
A. There was. 

Mr. Morgan. Wait a minute; the contestee objects to the question for the reason 
that the same is incompetent, irrelevant, and immaterial. 

Q. Do you know what the cause of that was? 

Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial. 

A. I know the cause they gave me was that they were afraid of the Federal law. 

Q. Did you see any hesitancy upon the part of these precinct election officials in 
these registration matters? 

Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial. 

A. Two inspectors resigned their positions in the city rather than conduct this 
registration . 

Q. If you know, you may state whether or not they knew and you knew of any 
prosecutions that had been conducted by the Federal Government on account of the 
grandfather clause antedating the time of this registration. That is, before. 

Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and for the 
further reason that there are no statements or allegations contained in the contestant's 
notice of contest relative to any former prosecution had by a Federal authority. 

Q. Answer the question — A. I knew of such prosecutions, and I am not sure that 
they — I had no proof that they knew of it. 

Q. That is other than what you have? — A. Other than they spoke of, that they were 
afraid to undertake to enforce the statute in what is known as the grandfather clause 
for the reason that they did not want to get into trouble with the Federal authorities. 

Q. Mr. Ringold, did you have any difficulty in the securing of precinct election 
officials to act at the general election in 1912? 

Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and not 
tending to prove any of the allegations or statements of contestant's notice of contest. 

A. In two precincts of this city and two of the counties outside of the city I did. 

Q. What were the grounds — what reasons led them to that? 

Mr. Morgan. Objected to, as incompetent, irrelevant, and immaterial. 

A. They simply gave us their reasons that they were afraid to get into trouble, and 
could not afford to get into trouble about the election law. They were men of families 
and could not afford to take the chances. 

I want to come now to the testimony of one of the big black pre- 
cincts. Take the testimony of Mr. Sorrells, and I think I can show 
you mathematically, in the aggregate, that there are 668 votes in 
these precincts. 

Mr. Stafford. I do not wish to delay you in your argument, but 
as I read those questions, they refer entirely to the difficulty of serving 
at election time rather than at the time of registration in the July 
previous ? 

Mr. Giddings. They refer to both, Mr. Stafford. 

Mr. Stafford. Will you kindly point out where there is any such 
testimony as that. 

Mr. Giddings. I have already 

Mr. Stafford (interposing). I think what you have already read 
does not so indicate. 

Mr. Giddings. It does not? 



30 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN". 

Mr. Stafford. I notice this question on page 60: 

Q. Mr. Ringold, did you have any difficulty in the securing of precinct election 
officials to act in the general election in 1912? 

Mr. Giddings. You have just taken one question. 

Mr. Stafford. Well, then, where is the other one? 

Mr. Giddings. At the top of page 60, previous to that. 

Mr. Stafford. I wish you would point it out. 

Mr. Giddings. If you will start in you will find four questions 
at the top of page 60 ; then you will find Mr. Morgan's statement on 
his objections, in which he says: 

Comes now the contestee and objects to the question for the reason that it is incom- 
petent, irrelevant, and immaterial, and for the further reason that under the laws of 
the State of Oklahoma the secretary of the county election board could have no 
jurisdiction over the registration of voters, that being delegated to the precinct inspec- 
tor of each precinct, respectively, in cities. 

And then there is this: 

Q. Answer the question. — A. I was not in charge further than advising and instruct- 
ing the precinct inspectors and registration clerks as to the manner of conducting the 
registration. 

Q. Do you know whether or not there was any hesitancy on the part of those precinct 
officers with reference to qualifying negroes, commonly called colored people? — A. 
There was. 

You see that refers to the qualification at the time of registratkm 
as well as at the polls. I think it is quite clear that that refers to the 
registration as well as the election. 

Mr. Stafford. It is rather vague, in my opinion. 

Mr. Giddings. It is not vague to me, Mr. Stafford. It follows the 
context after they have talked about registration, and then he 
testified that they could not get officers to serve. 

Mr. Stafford. And right below the question is asked as to whether 
the precinct officials acted at the general election in 1912. 

Mr. Giddings. Yes, but the questions preceding are in regard to 
registration. 

Mr. Stafford. Then you have matter in regard to one of the 
officials acting at the general election in 1912. 

Mr. Giddings. That is at the bottom of the page. 

Mr. Stafford. What do you contend was the intimidation that 
influenced the precinct officials in acting at the time of registration 
prior to the primaries in July, 1912? 

Mr. Giddings. Innumerable things. 

Mr. Stafford. As shown by the record? 

Mr. Giddings. As shown by the record, and as deduced from the 
very logic of events. The exultant glee that the partisans took in 
the conviction of the two white men down there; statements that 
were made as to their conviction, and as to what would happen to 
other white men if they acted that way at the time of registration 
in the general election in the qualification of voters. It already 
had been impressed upon them; presumably they read the news- 
papers, that these election officers had received this treatment in 
"the Federal courts, and it certainly had that effect upon them. 

Now then, I want to quote from the testimony of Mr. Sorrells, 
which begins at page 62 of the record. Mr. Sorrells was located 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 31 

in the big black belt. I will quote from his testimony, as it appears 
on page 63 of the record: 

Q. What effect, if any, did it have on you in the enforcement of what is commonly 
termed the grandfather clause? — A. It caused me to hesitate to enforce the law. 

Q. Do you know whether or not it had the same effect upon other officials there? 

Mr. Morgan. Objected to for the reason that the same is incompetent, irrelevant, 
and immaterial, and not showing that he knows what effect it had. 

A. Yes; they didn't want to enforce it at all. They was afraid of this letter. _ 

Q. Did you know, previous to that time, of the conviction of Beall and Guinn, of 
Kingfisher County, in the Federal court? — A. Yes, I knew about it; I knew they 
had 

Q. Were you a married man at that time? — A. Yes. 

Q. If it hadn't been for these illegal votes being cast there on account of the non- 
enforcement of the grandfather clause, would you be able to ascertain what would 
have been the result in that precinct? — A. It would have made quite a lot of difference 
if the negroes had been kept from voting. It would have been about 80 or 90 different. 

Q. Do you know the political faith of those negroes, or colored people? — A. Yes. 

Q. What was it? — A. Republican. 

Now, I want to take up the testimony of Mr. Lucas. 

Mr. Rogers. There is no evidence that those negroes were illiterate, 
however. 

Mr. Giddings. There is testimony here that they let them all vote. 

Mr. Rogers. Is not the burden of proof on the contestant to show 
that some of those who actually did vote were illiterate, and therefore 
that they illegally voted. 

Mr. Giddings. I think so. 

Mr. Stafford. I will direct your attention to this question on the 
top of page 64 in the examination of the same witness, in the cro*ss- 
examination by Mr. Morgan: 

Q. Were there any negroes who voted out there who did not have registration slips 
showing that they were registered voters in this city? — -A. No. 
Q. Then all of them had registration slips? — A. Yes. 

So I assume they had all qualified at the registration in the 
primaries. 

Mr. Giddings. Now, I want to call your attention to another 
answer following that which may further clarify that proposition : 
A. Well, I did not know whether they had been tested before or not. 

Mr. Stafford. He may not have known personally, but it is 
presumed that they had been before they got a registration slip, that 
they were qualified. 

Mr. Giddings. Oh, no. They might not be qualified, however in 
the light of this record that the men who were registration officers 
were afraid to qualify them for the sam reason that the precinct 
election officers were afraid to qualify them. 

Mr. Lewis. I notice on page 63 there is a question put to Mr. 
Sorrells, under the cross-examination of Mr. Morgan. Mr. Morgan 
asked this question: 

Q. Now, Mr. Sorrells, did you test these negroes on election day? — A. In what way? 

Q. By making them read or write a section of the Constitution of the State of Okla- 
homa.^ — A. Why, let's see; I made them write, but did not make them read. I did 
not make them write the Constitution — just their names. 

Mr. Giddings. Yes, sir; but I have some specimen copies of their 
handwriting upon the part of the negroes which even the party 
who got up this record could not set forth in the record because they 



32 CONTESTED ELECTION CASE OF CAENEY VS. MORGAN. 

were so illegible. Those specimens were left with the Clerk of the 
House of Representatives, and they seem to have been misplaced. 

Mr. Lewis. Then it is true that an effort was made to ascertain 
whether these men could write, so as to comply with that provision 
in the act of assembly ? 

Mr. Giddings. A very puerile effort, according to the answer of 
the witness there: "Why, let's see, I made them write, but did not 
make them read." The provision said, "Read and write." He said: 
"I did not make them write the Constitution — just their names." 
Almost any negro can scribble his name in some way, but that did 
not make him a voter, and that does not test his literacy, as con- 
templated. 

Mr. Lewis. The question I asked you was this: If they stood in 
fear of this circular and that letter, they certainly would not have 
asked these negroes even to write their names. 

Mr. Giddings. They would have done something, perhaps, to 
avoid an absolute noncompliance with the State law. 

Mr. Rogers. As I understand it, they were under no obligation 
to impose any test whatever at the election, because all these men, as 
the evidence on page 64 of the record shows, had in fact, been 
registered previously. 

Mr. Giddings. That is not true. They had the same right to apply 
the test in the light of what had transpired during the registration. 

Mr. Rogers. Is it not a fact that the right of qualifying at elections 
in city districts is merely a local right and not an obligation on the 
part of the election officers, unless there is a challenge. 

Mr. Giddings. It is not only a right. It is the duty of the precinct 
election official if he doubts whether or not a citizen is qualified to 
vote to test him in order to ascertain that fact. That is his duty. 

Mr. Rogers. Even though he has previously been registered and 
holds a registration card ? 

Mr. Giddings. Yes, sir; it is his duty. 

Mr. Rogers. Can you give us a reference to the statute which 
imposes that duty upon him ? 

Mr. Giddings. The supreme court of our State passed upon that, 
and it is set forth in the brief of the contestee here. 

Mr. Rogers. I think that goes into the very vitals of the case. 

Mr. Stafford. I do not think there is any reference to that in 
either brief. 

Mr. Giddings. There is a reference to it, Mr. Stafford. I want to 
say that I am not here to make any misstatements as to what the 
record contains. 

Mr. Stafford. I will be very glad to have you point that out in 
either one of the briefs. 

Mr. Giddings. I am sure it is in Mr. Morgan's brief. 

Mr. Stafford. I have read over every page of Mr. Morgan's brief 
as well as your brief, and I have found nothing to that effect. 

Mr. Giddings. It is a quotation from an Oklahoma case. I will 
locate that after a while, and I will call it to your attention. Now, 
I want to refer to the testimony of Mr. Lucas, of precinct No. 9 of 
the second ward. That testimony is found on page 64 of the record: 

Q. Did any negroes vote there that day? — A. Yes, sir. 

Q. How many? — A. Well, I would judge in the neighborhood of 200, maybe 400. 
I would guess there was about 200, maybe a little more than 200. I don't remem- 
ber exactly what the entire vote was. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 33 

Then on page 65 we find this testimony: 

Q. What effect, if any; did it have upon you in the enforcement of what is com- 
monly called the grandfather clause at the last general election? — A. It had a tendency 
of me being a little more lenient with the negro votes than if I had not received it. 

Q. Do you know whether or not it had an effect upon the other officials in the same 
manner? — A. I think it did; we talked about it. 

Q. If it had not been for this influence, do you know whether or not the result 
would have been different in that precinct? Or would it have any effect upon the 
result in that precinct? — A. I think it would. 

Now, I want to take up the testimony of Mr. Moore, of Luther 
Township, as found on page 66 of the record: 

Q. State, if you know, how many negroes voted in that township at the November, 
1912, election. — A. Possibly 120 or 130 negroes. 
Q. How many votes altogether did you have in that township? — A. We had 198. 

Then on page 67 we find the following in Mr. Moore's testimony: 

Q. What effect, if any, did the receiving and reading of that circular have upon 
you in the enforcement of the so-called grandfather clause? — A. Why, it caused us to 
let parties vote that we would have not let vote if we had not received that circular. 

Mr. Stafford. In the cross-erarination of the previous witness, 
Mr. Lucas, I find the following language at page 65: 

Q. To the best of your knowledge, then, there was no negroes voted in precinct 9-> 
ward 2, Oklahoma City, except they had registration certificates in due form prop- 
erly signed? — A. I don't think there was. There was some of them there that had 
registration tickets that was not in due form that we did not let vote. 

I assume from that that they were accepting registration certifi- 
cates as presumptive proof of qualification to vote, and if they were 
not in due form they did not permit them to vote. 

Mr. Giddings. If they were accepting them as conclusive proof of 
that, and they could be so accepted as conclusive proof, why was it 
that the United States attorney, with full knowledge of the law, sent 
to each nrecinct election official this letter to which reference has been 
made, that he dare not make this test. Certainly it would not have 
been a violation of the Federal laws, if a precinct election official, 
finding a registration slip not in proper clerical form and not properly 
attested and signed, would refuse to let a man vote under that reg- 
istration certificate. That would have been a violation of the State 
law over which the Federal courts could have had no jurisdiction. 

The Chairman. Mr. Giddings, if a question is asked you, I wish 
you would answer it in the best way you can. It goes into the record. 
We will consider it after all the argument is in and the case is before 
the committee for consideration. 

Mr. Giddings. I will answer the questions, Mr. Chairman, as best I 
can. 

Now then, I want to refer to this testimony on pages 66 and 67, the 
testimony of Mr. Moore, where this occurs: 

Q. What effect, if any, did the receiving and reading of that circular have upon you 
in the enforcement of the so-called grandfather clause? — A. Why, it caused us to let 
parties vote that we would have not let vote if we had not received that circular. 

And so on throughout the record. 

And the same testimony, to some extent, is found in the Blaine 
County precincts. 

I come now to the testimony of a gentleman of the name of Mr. 
Barker, of Springer Township, where the same thing occurred. That 

46996—14 3 



34 CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN". 

testimony is on pages 74 and 75. He testified he received the 'cir- 
cular, and he further testifies as to the effect it had upon them in that 
election. This is some of the testimony: 

Q. If it had not been for the receipt of those communications and for the fear of 
Federal prosecutions, as you have testified, and you had been permitted to enforce 
the grandfather clause — that portion of the election laws — what would have been the 
result in that township; that is to say, would it have changed the result in that pre- 
cinct? — A. I think that I think that knocks the blacks right out of the law. 

Q. What effect did that have on the result in that precinct between the different 
candidates for office; would it have been Democratic or Republican? — A. I see the 
question — it would have meant the number I gave you- — 60 challenged — cut out. 

Q. Would it have the same effect of changing the result in that precinct? — A. Oh, 
sure, sure. 

Q. Do you know most of those negroes, out there? — A. Pretty well acquainted with 
them. 

Q. Do you know whether all of them were capable of reading a portion of the State 
constitution of Oklahoma, and writing portions thereof?- — A. Quite a number of them 
isn't. 

Q. Did they vote anyway? — A. They all voted. 

Now, I want to direct your attention to the testimony of Mr. Mor- 
ris, who lived in another big negro precinct, where 70 per cent of the 
Republican vote, according to his testimony, is a negro vote. I want 
to quote from page 78 of the record: 

Q. How many negroes voted in that precinct, to the best of your knowledge, at the 
last general election? — A. Let me see — about 70 per cent of the Republican vote there 
is negroes, and I don't know what the Republican vote is; I can't remember it from 
time to time. It is probably, though, about 135 or 140 Republican votes, and I think 
there is at least 70 per cent of them negroes. 

Q. Do you know of any negro there who voted the Democratic ticket at the last 
general election? — A. No, sir. 

Q. What effect, if any, did these circulars have upon you in the enforcement of the 
election laws of the State of Oklahoma? — A. Well, I simply did not want to try to 
enforce the grandfather clause in the State it was in with those threats over me. 

Q. Were you a married man at that time? — A. Yes, sir. 

Q. A man of family? — A. Yes, sir. 

Q. Besides your wife? — A. Yes, sir. 

Q. Do you know most of those negroes in that township? — A. Yes, sir; I don't think 
there is one I don't know. _ . 

Q. If you could have enforced this law in that township, would it have made a dif- 
ference in the result? — A. Yes, sir; no doubt about it. 

Q. Which way?— A. It would luwe given the Democrats the majority. 

Q. Did you see any of these negroes tested there by making them read and write 
thoroughly a portion of the constitution of the State of Oklahoma? — A. No; we did 
not put the test to any of them. We asked them if they could read and write. 

Q. If they said yes, what was done? — A. Let them vote. 

Q. You know whether there is any illiteracy among the negroes in that township? — 
A. I do; yes, sir. 

Q. Is there much or little? — A. Why, I believe there is about — I believe there is 
a third of them fully vote according to the law. 

That is the basis down there. People wno are acquainted with the 
situation in the Soutn and Southwest know that is the basis. Some- 
times it is 50 per cent, even as in the black belt of Louisiana and 
elsewnere. 

Then he testified that the negroes, probably chock full of partisan 
liquor, "They got boisterous, and we thought we would pass them 
in. We had a little trouble." 

Mr. Morgan. Pardon me; did you say they served liquor to them? 

Mr. Giddings. No; I did not say that. 

The Chairman. Do they drink any liquor out in Oklahoma? 

Mr. Giddings. They do. Sometimes on election clay when they 
want them to vote. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 35 

Now, I come to the testimony of Mr. Burnsworth, beginning on 
page SO, and I wani to show how this affected them: 

Q. How many negroes voted in that township at the last general election, to the 
best of your knowledge? — A. As nearly as I can recollect, about 70. 

Q. What was their political faith? — A. Republican. 

Q. If that provision of the election laws of the State, to wit, what is commonly 
termed the grandfather clause, had been complied with out there, enforced, would it 
have changed the result in that precinct? — A. Yes. 

Q. Now, which way would it have changed the result? — A. It would have thro wed 
it in favor of the Democrats. 

Q. Did you compel any of those negroes to read and write a section of the consti- 
tution? — A. Not at the general election, but at the primary I did. 

Q. At the general election, that is what I am asking about. — A. From the simple 
fact I had tested them at the primary and I knew. 

Q. Those you did not know about, did you test them by making them read a section 
of the constitution and write it? — A. Well, no. 

Q. Why didn't you? — A. From the simple fact I was threatened with the Federal 
law if I did. 

I think by computation you will find that that constitutes about 668 
negro vote, and the records here from other piecinets will show pos- 
sibly six or seven hundred moie. The lesumony is in the record. 
It is a voluminous record. 

The only way I could get at who voted and what their politics were, 
was to show who registered and how they registered, and what their 
politics were at the time of registration, and to bring the slips showing 
that they had voted, and from that at least lay the predicate that 
they voted as we charged in this contest, and thereby changed the 
result. 

Mr. Stafford. In the case of a contest, what becomes of the bal- 
lots, under your State law? In our State they can be preserved. 

Mr. Giddings. The ballots are preserved. 

Mr. Stafford. Are they in existence now? 

Mr. Giddings. I think so. Copies of the stubs are right here. 

Mr. Stafford. I am simply asking for information. In our State 
after a certain time they are destroyed. 

Mr. Giddings. I do not know whether these have been destroyed 
or not. I do know that immediately after the election we took the 
testimony of the secretary of the election board and of the precinct 
election officials, and we have presented in this record that testimony. 

Now, I come to this proposition, that there is an admission here 
upon the floor of this committee by Mr. Morgan that this letter was 
sent out by Mr. Boardman, or at least that it was written by Mr. 
Boardman. 

Mr. Morgan. Oh, no. 

Mr. Giddings. That was the statement of Mr. Morgan. 

The Chairman. There can be no admission unless we put it on the 
record. It is admitted between the parties. I would not consider a 
statement made by any man — and Mr. Morgan is as much outside 
this committee, sitting where he is, as any of the spectators here. 

Mr. Giddings. He is a member of this committee to this extent, 
that he is a litigant here. Tie arose here and admitted that Mr. 
Boardman had written this letter. 

The Chairman. If that is so 

Mr. Morgan (interposing). I did not deny it. 

Mr. Giddings. If there is no denial of it, it is the same as an admis- 
sion. 



86 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

The Chairman. You go ahead with your argument now, and we 
will consider that later. 

Mr. Giddings. I say he has shown by that admission, made in 
open committee, that the United States district attorney had sent 
this letter out. Whom would he send it to ? Would he send it to 
only one election official, or would it be sent to each and every elec- 
tion official in every precinct where there were illiterate negro voters ? 
And I think it is shown that he, as ex-campaign manager of the 
Republican campaign committee, would desire to not have the law 
enforced. The best proof of the fact that the grandfather law was 
not enforced in my State is the fact that subsequent to the last 
general election not a single solitary prosecution was brought in the 
Federal courts for the enforcement of the grandfather law, in viola- 
tion of the Federal law. 

Mr. Morgan. How is that? 

Mr. Giddings. I say not a single solitary Federal prosecution was 
brought in any Federal court of the eastern or western district of 
Oklahoma for the enforcement of the grandfather clause at the last 
general election. 

The Chairman. I will not allow any interruptions of a man speak- 
ing before this committee. 

Mr. Morgan. I beg your pardon. 

The Chairman. If there are any points which counsel want to 
except to they should make a note of them and answer them later, 
or else we will not have a logical argument on the record. 

Mr. Giddings. The only prosecution that resulted — and about that 
Mr. Morgan may disagree with me — was one that resulted in the 
prosecution of the election officials of Blaine County, and that was 
not under the grandfather clause, not for the enforcement of the 
grandfather clause, but for other acts at certain precincts of which 
Mr. Morgan complains, subsequent to the time of the vote and the 
return to the country election board of Blaine County of the several 
precinct election officials of the county. That was the only thing 
the Federal officials could jump on, and they jumped on those poor 
devils and indicted them in the Federal court. 

Mr. Broussard. What was the offense charged ? 

Mr. Giddings. They indicted them under the blanket conspiracy 
statute, charging conspiracy to deprive a citizen, under the conspiracy 
of a right or privilege, guaranteed to him by the Constitution, or laws 
of the United States. 

But they could not make that stick; even the Federal court sus- 
tained our demurrer to the indictment in that case, and the Govern- 
ment appealed that case to the Supreme Court of the United States. 
That is the only case that grew out of the last general election in 
Oklahoma. 

They were vicious in their demands that the law be not enforced, 
and they had threatened innumerable prosecutions in the event of 
its enforcement in the several precincts of this district; and it seems 
to me that logically it must be presumed that if the election officials 
had not been in fear of Federal prosecution that the law 7 would have 
been enforced; that having failed to enforce it, the Federal courts 
could find no way, through the medium of Mr. Boardman, who was 
even at that time United States attorney, to bring any further Federal 
prosecution therein. 



CONTESTED ELECTION CASE OF -CARNEY VS. MORGAN. 37 

Now, may it please the committee, the suggestion was made to 
me since I came to Washington, that it seemed strange that the 
Democratic State or county election board would issue such a certifi- 
cate, if there had been such intimidation as we allege. 

It is admitted in the brief of the contestee that the State election 
board merely acts as a ministerial body, in a ministerial capacity. 
The county election board, which is an inferior subdivision, have no 
judicial functions ; they could not pass upon the question as to whether 
a man has been at least legally elected and go behind the returns; 
they must take the returns as they find them, and relegate the one who 
thinks himself aggrieved to the State court in an action in the nature 
of quo warranto proceedings, if it be a State or county office, and if 
it be a congressional office, relegate him to a congressional contest. 

The only discretion that a county or State election board has in 
my State or any other State, so far as 1 am aware with regard to the 
returns, is to see that they are properly attested and signed and 
certified, and there the duty and function of the board ends, so far as 
the nominees may be concerned. 

Now, I want to call the attention of the committee to a case which, 
it seems to me, is on all fours with this case. It was a congressional 
case, in which the rule was laid down by vast Republican majority, 
immediately subsequent to the Civil War, and at all times until the 
enfranchisement acts were repealed in 1894. 

Some of the members of this committee will remember that pre- 
vious to the war between the States there was vested in the State 
governments the supreme power of conducting their elections. And 
you will remember that subsequent to the war, beginning late in the 
sixties, and early in the seventies, the Congress of the United States 
began the passage of laws which they were pleased to term enfran- 
chisement acts. Those laws provided for supervisors of election in 
the different States of the Union, particularly in the South, provided 
methods of procedure for conducting the election, and provided 
punishment. They remained upon the Federal statute books until 
1894, when, under the masterful guidance of Senator Gorman of 
Maryland, all of them, except the conspiracy statute, were repealed. 
It was the evident purpose to reinvest the power to conduct every 
election in the State tribunals and in the State jurisdiction as they 
had been previous to the war between the States. The only single 
Federal statute in any way interfering with the right of the States 
was section 19 of»the Penal Code. Evidently it was the intent at that 
time to repeal that as well, if it did apply to the conduct of elections. 
I have always had my doubts as to whether that statute had any 
application to the franchise. It is found to-day under the title of 
civil rights, and that is where it belongs, in my judgment. 

After the passage of this law creating supervisors of election — and 
I do not mean to raise any sectional issue here, but you know the 
primary purpose was to protect the Negro in his new-found privilege, 
not right, of franchise. While that law was in vogue, and previous 
to the time when Senator Gorman began his agitation to repeal it, a 
contest came from the South in which the question was raised as to 
what intimidation of election officials should vitiate an election, and 
the hard and fast rule was established by the Republican majority 
on the committee in that Congress, which rule I intend to read to you, 



38 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

and certain! v it will not be contended that if that rule as then estab- 
lished was good for them at that time that it is not good for them now. 

I will read to you from the case of Hill v. Catchings, in the Fifty- 
first Congress. 

Mr. Broussard. Is that a Mississippi case ? 

Mr. Giddings. I think it is. It is quoted in the brief of Mr. Davis, 
who is the contestant against Mr. McGuire, on page 34. It is the 
case of Hill v. Catchings in the Fifty-first Congress. These Federal 
supervisors were down there at this time. It was contended that 
they were intimidated in the conduct of that election, and that the 
intimidation was general in its nature, and a vast Republican 
majority of the House, on proof that that general intimidation 
existed, adopted this rule : 

If it be shown that there was an unlawful interference with the United States super- 
visors of elections whereby they were prevented from discharging duties which are 
committed to their hands by the law, then it would undoubtedly be our duty to set 
aside the election at such precincts. 

In every instance where a United States supervisor is prevented from discharging 
his duties, as provided by statute the committee hold that such fact destroys the 
validity of the return and requires its rejection, leaving the parties to prove the votes 
by other competent evidence. 

Why does not the intimidation which runs like a black cloud all 
through the heaven of this contest, .constituting the same nature of 
intimidation, entitle this contestant to the same relief as given the 
contestant in that case, where the Federal supervisors of elections 
were intimidated ? 

Here we have the undisputed and undenied testimony and admis- 
sions that this letter went into the several precincts; that it was writ- 
ten by the United States attorney; that it was received by every 
election official in every negro precinct in the district, and each and 
every one of them, in substance and effect, come before this commit- 
tee and say that the receipt of that letter and that circular intimi- 
dated them so that they could not hold an election that could be 
free and equal. 

In every instance where a United States supervisor is prevented from discharging 
his duties, as provided by statute, the committee hold that such fact destroys the 
validity of the return and requires its rejection, leaving the parties to prove the 
vote by other competent evidence. 

I want to get back now to the proposition in regard to this warn- 
ing circular, and I want to show this committee how it could not 
possibly affect anybody in the second congressional district advanta- 
geously except Dick T. Morgan, and nobody injuriously except this 
contestant, outside of the presidential electors. I want you tonotice 
the ingenious language used, which indicates that suchwas the intent, 
and I am going to show you in a moment an authority on all fours 
with the contention I made here yesterday as to where the blame 
should lie and who should receive the detriment occasioned by the 
issuance and circulation of such matter. 

Certainly no man would forge the name of Boardman; certainly 
if this had been an unauthorized letter some prosecution somewhere 
would have been instituted by Mr. Boardman or his duly authorized 
and accredited agents for the purpose of showing that he had nothing 
to do with the letter. Certainly it was up to them to show that this 
letter was unauthorized. 



CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 39 

Mr. Broussard. Is Mr. Boardman still district attorney out 
there ? 

Mr. Giddings. No, sir; he has been either removed 

The Chairman (interposing). He is not district attorney out there 
now. 

Mr. Giddings. He was up to a little while ago. His assistant, 
Mr. Taylor, is now district attorney down there. 

On page 25 of my brief I call attention to the language of this 
letter, which is so ingenious and its force and its evident purpose 
and intent merely were to affect the election of a Congressman and 
presidential electors in that district . That language is : 

As to the purely State questions involved in the law, I do not express any opinion, 
the same not being within the jurisdiction of this office, and his opinion is directed 
solely to the Federal question involved; that is, the application of the grandfather 
law to negroes who, on account of race, color, and previous condition of servitude, are 
not permitted to vote without submitting to certain tests of reading and writing. 

And that solely could apply to Members of Congress and the 
presidential electors. 

Now, then, let us see what authorities there are which sustain our 
position. 

Mr. Rogers. Were not the candidates for United States Senator 
balloted for at that time ? 

Mr. Giddings. Yes, sir. 

Mr. Rogers. And the Congressmen at Large? 

Mr. Giddings. The Congressmen at Large. That is right, but 
the United States Senator was elected at the time by direct vote of 
the people, and not by the legislature. 

The suggestion was made here yesterday by some member of the 
committee, and I have tried to follow the suggestions and answer 
them to the limit of my ability- — as to whether or not there should 
have been some bodily force used, or some bodily violence or intimi- 
dation, as to whether or not that should not have existed ; in other 
words, if it merely operated on the mind, whether that would be suffi- 
cient intimidation. 

I want to call attention to a case of Richardson v. Rainey, in the 
Forty-sixth Congress, in which this rule was laid down: 

It need not be that there is at the time of voting the presence of threats or of force, 
or the present fear of actual bodily hurt. The genius of free institutions demands that 
the mind as well as the body shall be free to exercise the elective franchise as the voter 
may see fit. The fear of bodily harm, the fear of social ostracism, the fear of religious 
wrath, if brought to bear upon the body of voters, or if exercised to any great extent, 
mar the purity and destroy the freedom of elections, and if it be so general as to affect 
the result, or if from it the real result can not be ascertained from the returns, the 
election is void . 

The purity of elections and the effect upon the body of voters as a whole is in the 
hands of election officials, and if they are intimidated not one vote but all are in the 
condition above mentioned, and none are free from the contamination. If the foun- 
tain head from which purity flows is not pure, then the votes can not be pure. The 
impure votes are cast with the pure and they make the pure impure and they must 
be counted against pure votes. 

If the fear therefore be such in extent that it mars the purity and destroys the free- 
dom of the election, or if it be so general as to affect the result so that the real result 
can not be ascertained, the election is void. 

Will you tell me whether or not it was not the general fear that 
each official at that time was threatened with a term in the Federal 
penitentiary, of being taken away from his home and family and 



40 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

made a criminal, that that was not sufficient fear to put in the heart 
of any honest citizen of Oklahoma; and if that was general to such 
an extent that the bars were let down all over the district, a district 
where, indisputably, there were 1,740 negro voters at that time, 
how are you going to ascertain if there was a free and fair election 
there, or that in the absence of such intimidation the result would not 
have been different? Do you mean to tell me that any fair jury, as 
triers of fact, sitting on a case of this nature, to pass upon the question 
as to whether, in fact, intimidation has been used, would hold, in the 
jurisdiction of Oklahoma, that that was not sufficient intimidation, 
at least to invalidate and vitiate the election? 

It is immaterial to me whether you say this was a fraud on the part 
of the election officers or not. If it went to court on the fraud of 
election officers, and this man got the benefit of the fraud by their 
failure to enforce this law, he certainly can not complain. He can 
not hide behind that and say, "I had nothing to do with it." 

In the case of Freeman et al. v. Lazerus, the following rule was laid 
down, as quoted on page 38 of the brief of Mr. Davis: 

There is a difference between fraud committed by officers or with their knowledge 
and consent and a fraud committed by other persons, in this: The former is ordinarily 
fatal to the returns, while the latter is not fatal, unless it appears that it rendered 
doubtful or changed the result. If an officer is detected in a willful and deliberate 
fraud upon the ballot box, the better opinion is that this will destroy the integrity of 
his official act even though the fraud discovered is not of itself sufficient to affect the 
result. The reason of the rule is that an officer who betrays his trust in one instance is 
shown to be capable of defrauding the electors, and his certificate is good for nothing. 

If an official is so intimidated that he can not enforce the law, fraud 
upon the electors is absolutely certain. In the case which I have just 
cited he might not continue the fraud, but under our fact? he must con- 
tinue the fraud in some measure, as long as he is intimidated. 

I want also to quote from the ca=e of Greevy v. Scull, in the Fifty- 
second Congress. This rule was laid down: 

The power to fix the qualifications of voters is vested in the States, subject only to 
the limitations contained in the fifteenth amendment to the Constitution of the 
United States. Each State fixes for itself these qualifications, and the United States 
must adopt and has uniformly adopted the State law upon the subject, and the House 
of Representatives should not in any case fail to act in conformity with it. 

The proposition is that the Supreme Court of the State of Oklahoma 
having passed upon the validity of this grandfather law, that is bind- 
ing upon this tribunal, and that the Congress of the United States, 
not once only, but many times, ha? held that to be a proper action 
upon the part of a Committee on Elections, or upon the part of the 
House as a whole. 

From the Third Congress down to the beginning of the Fifty-fifth, 
the same rule has been established. I am talking back to this grand- 
father clause. [Reading] : 

It is a well-established and most salutary rule that where the proper authorities of 
the State government have given a construction to their own constitution or statutes, 
that construction will be followed by the Federal authorities. This rule is absolutely 
necessary to the harmonious working of our complex governments, State and National, 
and your committee are not disposed to be the first to depart from it. 

That cites a long line of authorities. I call your attention to an 
Oklahoma case. I am going to come to your case, Mr. Stafford, 
that we can go back of the certificate of registration. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 41 

In the case of Rampendahl v. Crump, an Oklahoma case [reading] : 

Obviously the lawmaker;., tpecifically placing such duty upon the voter, and 
imposing the penalty of felonious punishment upon anyone unauthorized interfering 
by receiving the ballot, intended such provision to be mandatory. 

But the rule obtains in elections, as in other affairs, that a man shall not benefit 
by his own wrong, nor by that of others done to allow him to reap the benefit. 

That is to say, Mr. Morgan can not reap the benefit of the recom- 
mendation of the United States attorney. So, it has nothing to do 
with it, nor inures to his benefit. [Reading resumed:] 

The only means by which approximate justice may be reached when the illegal 
acts render the results doubtful, is to require the party, to whose benefit they inure 
to purge the poll of their effect, or suffer the penalty of having its majority excluded 
from the count of his vote. 

And will it result in his benefit ? Did it result in his benefit ? 
Read this record, and you will find in every precinct where the 
negroes voted in actual quantities, regardless of the grandfather 
law, Mr. Morgan carried the district. 

This record shows that over 1,400 negroes voted in these various 
districts, and I purpose to show you that they voted the Republican 
ticket, and that their votes ought to be excluded, considering the 
propositions hitherto advanced in this argument. You can not 
make a man divorce himself of that of which he has knowledge. 
You can not make a man who lives in my country or around it 
conceive of anything else but that when the negro votes he votes the 
Republican ticket. We know that. We can not divorce that 
knowledge from what we know; and in their decisions on the facts 
of this case the members of this committee have the right to direct 
the light of their general knowledge and information upon the 
subject. 

The next proposition showing that they voted the Republican 
ticket is evidenced from the fact, as shown in this record, that in 
several precincts, or at least one, when these negroes went to the polls 
out in Luther Township that they asked for ballets with Dick 
Morgan upon them; and they were told that they had no special 
Dick Morgan ballots, that they would give them the general ballots 
and let them vote the way they pleased. 

Then there is the testimony of these election officials referring 
to many of these men who testified that they knew the politics of 
each and every individual negro who voted there; that they knew 
his politics to be Republican. 

It seems to me that with all these facts and circumstances they 
at least are sufficient to make out a prima facie case that they did 
vote the ticket that we charge them with voting and their vote was 
so intermingled and intermixed with the good votes in those several 
precincts that the results have been tainted and ought not to be 
received in evidence here before this committee. 

If the committee please, upon those matters, which are purely 
defensive and as a matter upon the part of a contestee, I do not 
desire to take up the time of the committee in advance. I would 
not know how to anticipate, may it please the committee, the posi- 
tion that the contestee is going to take in this case. 

The Chairman. Have you not the opportunity to reply ? 

Mr. Giddings. Yes, sir. 



42 CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 

If I could anticipate it I would finish this argument now. 

I was confronted in the answer of the contestee with the statement 
by Mr. Morgan that he denied that Mr. Boardman had written this 
letter and demanded strict proof of it, and I am here confronted 
with his admission or the statement rather that he does not deny- 
that it was so written by Mr. Boardman. 

I was confronted at one phase of this situation with the denial 
that the grandfather law was a valid, subsisting, and constitutional 
provision of my State; and I am confronted now with the brief of 
the contestee, in which, tacitly at least, he admits the validity of 
that law. It would be utterly impossible outside of this situation 
in Blaine County, where the election officials, acting under their oaths 
as officers of the county election board, rejected 10 or 11 returns, 
presumably upon the theory that those returns were not properly 
attested or certified to as required by law, bacause in that respect 
and that alone have they any jurisdiction to inquire into the conduct 
of elections in any given precinct in their county. 

I do not want to burden this committee with any further argu- 
ments. I have tried to make myself as plain as possible. 

Now, then, as to the statement of Mr. Stafford that he could 
not find such case 

Mr. Stafford. If you have not it at hand now you can refer to 
that later at any time at your leisure. 

Mr. Giddings. I know it is in here. 

The Chairman. Suppose you look for it later and in your reply 
bear it in mind and see that we get it in the record. 

Mr. Giddings. It is in here somewhere. 

I want to show you an admission in this brief, and I trust the 
members of this committee who are lawyers, as well as those of other 
professions and businesses, will bear this in mind- — and I have tried 
to hammer on it so repeatedly that it would not escape the atten- 
tion of the committee, that where matters have been admitted in 
the pleadings that we have considered that that obviated the neces- 
sity of proof, as if they were trying this contest just like they try a 
lawsuit in another tribunal, and that they were bound by the admis- 
sions in their pleadings, and I have called your attention to those 
admissions times without number. 

The Chairman. You have called attention in your brief to some 
of them ? 

Mr. Giddings. Yes, sir; I have. 

We have another admission upon the part of the contestee that 
there were sufficient negroes who voted there to virtually have 
changed the result, unless he added to his result the election returns 
in Blaine County, Okla. If those be deducted, we have his own 
admission in his own brief that he was not elected from the second 
congressional district of Oklahoma, and that instead of that he 
was defeated anywhere from 115 down to 59 votes in that precinct. 

I shall not attempt to anticipate in advance what position he 
shall take upon the election in Blaine County; how far he shall be 
permitted to go behind the conduct of those election officials in 
throwing out returns that may not have been properly certified or 
signed according to law. I am not going to take up any further 
time of this committee, except to make a few references, and then I 
am through. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 43 

I do not want to go out of this record. As I told you in the begin- 
ning, this is a matter of serious consequence to the people of my 
State; it is a matter of serious consequence in the conduct of future 
elections. These two men, Beall and Guinn, who were convicted 
in the Federal court, were farmers living in Kingfisher County, 
Okla., out in a vast negro precinct. It may be inquired, and it 
may be the contention of some Republican members upon this com- 
mittee, that those men were lawfully convicted; that the presump- 
tion is they were lawfully convicted before a jury of their peers, but 
those of us who have practiced law in the Federal courts — and I do 
not desire to in any way impugn their integrity — know very well 
how those things are done, and everyone in Oklahoma knows that 
the jury which convicted them consisted of 11 Republicans and one 
Socialist. What opportunity 

Mr. Giddings. That is the truth, and you need not shake your 
head. We kept pretty good tab upon it, and there were at least 10 
Republicans, and one who had leanings toward Republicanism, and 
one Socialist. 

It therefore remains an obvious fact that these men would not 
have much show before a jury of that nature. Those men were 
convicted, and yet they have stood by their guns; they have lived 
in a state of terror and of fear in Kingfisher County. They live out 
in a negro precinct where they have sought to educate their white 
children in separate schools; and in that precinct not once but 3 
times since that election have the negroes burned down their white 
schoolhouses, necessitating them at last to go to the extremity of 
building a white schoolhouse right up against their own farmhouse, 
in which to educate their young children, and necessitating the 
keeping of an armed patrol there day and night to effectuate that 
godly purpose. 

So, I say to you it is a serious matter with my people. I do not 
desire to be sectional. I call your attention to these facts. You 
send us back empty handed, and give these people carte blanche 
to do the same thing in the future to intimidate — and when we 
try to enforce our white man's election laws down there it can be 
said to them on the stump and elsewhere, "You tried to enforce 
them once and you got sent to the penitentiary for it; and when you 
failed to enforce them again under threat of Federal prosecution if 
you did, a Democratic committee turned you down. You better 
forget such laws. You better take no chances on Federal prosecu- 
tion and humiliation." 

If in the light of this record this committee by a majority can 
say this was not intimidation; that it does not raise a presumption 
that there was fraud, that there was a taint in that election, then 
it seems to me that the language of this testimony and of that letter 
and that circular have not the force and effect, and will not have 
the force and effect upon this committee that they had upon those 
election officials. 

Gentlemen, there are numerous other matters that I would like to 
discuss, but I have already taken too much of your time. However, 
I do impress upon you, aud I know you know the importance of it, 
the necessity of careful investigation of these matters. Do not send 
us back there empty handed, when we call on you with clean hands. 
We did not do these things: there is not a su^pr-stion, an intimation 



44 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

that we had anything to do with the issuance of this letter. It 
would not benefit us- to have these negroes vote. The benefit under 
this testimony was on the other side. We can not be blamed with 
it. There is not even the remotest suggestion that any Democratic 
committee, acting for any Democratic candidate, sent any such 
circular anywhere at any time for political effect, and if we had had 
an even break, if we had an honest, if we had an equal, if we had a 
fair, if we had an American election down there the result would 
have been different in that district; and if that be tru«, then this 
contestant is certainly entitled to his seat. Most of his time has 
expired. Even at that he is entitled to the balance of it. But, 
regardless of that, and if the committee should find that there was 
not sufficient evidence to show numerically, mathematically and 
arithmetically, as required by some that he was entitled to his seat, 
at least we ask, for the enthronement of the principal of right local 
self government in the State of Oklahoma, that you declare this 
election void, invalid, and say to those Federal officials, ''In the future, 
don't you dare to try to intimidate the election officials of that State; 
it is not your business to do it. The laws of your land do not require 
or demand it, and men in public office, such as Federal district attor- 
neys, or otherwise, have no business as partisans, sending circulars 
around threatening men with Federal prosecution: that is not their 
duty. They are to sit there, instead of being in league with some 
Republican organization, as in this instance, or some Republican 
campaign manager, as in this instance, they are to sit there as non 
partisans, regardless of their own personal political faith, and enforce 
the laws of their jurisdiction and let the laws of the State of Oklahoma 
and her precinct election and county election and State election 
officials alone. 

Therefore, in summing up, I desire to say merely this — and I am 
through, and in the concluding argument, as I stated in the opening, 
I will try to answer to the satisfaction of Mr. Oglesby the two ques- 
tions he propounded to me on yesterday. In conclusion, permit me 
to say this, seeking to sum up this entire situation, and that is all we 
ask; we do not care about that office, but we want to be let alone 
down there; we want to have the right to run our own elections. 

We ask this committee, in justice to free elections, in deference to 
an untrammeled ballot, to declare one of two things: First, that by 
the rejection of this illegal vote the contestant stands elected, or that, 
by reason of the intimidation used, and wantonly used at that, the 
seat in Congress from the second congressional district is vacant. 
We are not fighting so much for a seat in Congress as we are for the 
principles of local self government; of white supremacy \n our State. 
We will be satisfied with either one of these findings, to the end that 
the contestee may be unseated, in the interests of civilized and free 
elections, and that he may no longer hold a seat in Congress over the 
earnest protest and votes of the great majority of our intelligent and 
conscientious citizenship. 

That is our prayer, and we confidently expect that that prayer will 
be realized in this contest. 

Mr. Michener. Mr. Chairman and gentlemen of the committee, 
I have asked Mr. Morgan to make the opening statement for the 
contestee, and I trust that will be agreeable to the chairman and 
gentlemen of the committee. 



CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 45 

The Chairman. I am going to say this, if it is agreeble to the 
committee — I am going to put it to the committee — if two counsel 
address the committee, I suppose it is only fair if Mr. Carney wants 
to address the committee that he have an opportunity. What 
does the committee say ? 

Mr. Michener. The contestee will assent to that. 

The Chairman. There is no objection to that. 

Mr. Michener. Very well. 

Mr. Giddings. I think the orderly plan of procedure would be for 
him to proceed and Judge Carney follow him. 

STATEMENT OF HON. DICK T. MOEGAN, CONTESTEE. 

Mr. Morgan. Mr. Chairman and gentlemen of the committee 

Mr. Carney. I did not understand. 

The Chairman. You will have an opportunity. 

Mr. Carney. I would like to have an opportunity after the attorney 
has addressed the committee. 

Mr. Morgan. Mr. Chairman and gentlemen of the committee, 
for some reasons I would prefer not to speak in my own behalf, 
but Gen. Michener, my counsel, thought I should speak. That was 
one reason why I speak. Another reason why I do so is because 
I want to submit to the chairman of this committee and to every 
member of it absolute freedom to cross-examine me and to put 
all kinds of questions to me that they think will throw any light, 
certainly upon my conduct or of anyone connected with my campaign, 
and I would really feel, if I did not voluntarily come before the com- 
mittee, that it might be a little like the man who had not testified 
in a case 

The Chairman. Afraid to take the stand ? 

Mr. Morgan. Yes. Especially, I want the committee to be 
free to question me concerning anything I have done or anyone 
connected with my campaign committee or the congressional com- 
mittee. 

Mr. Oglesby. You mean only in connection with the campaign ? 
[Laughter.] 

Mr. Morgan. Anywhere, because I try to live a life that I do not 
care if the world knows it. That is a fact. 

There is a third reason why I think it appropriate that I should 
speak, p.nd that is in behalf of my constituency; and by that I mean 
in behalf of the people of the second congressional district, because, 
Mr. Chairman, it is not myself and Mr. Carney who are on trial; we 
are not the only parties interested in this case. The people of the 
district, Democrats as well as Republicans, and Socialists, are entitled 
to be heard in this case. So that I claim that I speak for them as 
well as for myself, what personal interest I have in the result. 

Mr. Chairman, it is of course well recognized that the burden of the 
issue in this case rests upon the contestant. He must establish, as I 
understand it, by a preponderance of the evidence — in other words, he 
must establish by clear, sufficient, and competent evidence every 
single material fact that is necessary to enable him to prevail in this 
case. I think there is no question about that, because, Mr. Chair- 
man, I come here with a certificate of election, which ordinarily or 
always is at least prima facie evidence of my election; but I claim 



46 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

that in this case my certificate means more than it ordinarily would, 
because this certificate was not given me by my political friends; it 
did not come to me signed by a Republican official, but it comes to 
me from a Democratic State election board, signed by the secretarj^ 
of that State election board, a Democrat, and he issued that certificate 
on authority, as we would say out there, from the "grass roots," from 
the lowest and the smallest election precinct in that district — every 
single officer, every single return, comes from Democratic authority. 
Not that Democratic authority is necessarily better than the Repub- 
lican or Socialist authority, but in this case it comes because it is 
authority that is adverse to me politically. So that if there should 
be any advantage it would certainly be given to the other side. In 
other words, my opponent failed to get the. certificate from his friends, 
I received that certificate from my political adversary. 

So that it is more than an ordinary certificate. I might say that I 
am glad that I can be elected in a district through an election con- 
ducted by Democrats. While the Republicans have generally, or 
may have a minority representation, yet Democrats have the majority 
in every single election precinct, and I guess I might refer to that 
right here. 

The Chairman. Yes, I would like to know something about that. 

Mr. Morgan. That under our State election law, the governor of 
our State, who has been a Democrat, and so far as I know will be a 
Democrat for a long time to come — I hope not always — is authorized 
to appoint a State election board composed of three persons, not more 
than two of which can be of the same political party. 

Mr. Broussard. Have the Republicans one of those ? 

Mr. Morgan. Yes, sir. 

Mr. Broussard. Two Democrats and one Republican. 

The Chairman. It is bipartisan, but these boards are constituted 
with a majority of their membership belonging to the prevailing 
political party ? 

Mr. Morgan. Yes, sir. 

Mr. Oglesby. That is not what we ordinarily understand in my 
State to be bipartisan members. We have several bipartisan boards 
consisting of four membeis, two Democrats and two Republicans. 

Mr. Morgan. The law provides that no more than two of those 
three shall be of one political party; and so on down to the precinct 
election board. 

Mr. Broussard. Are they all appointed by the governor? 

Mr. Morgan. The State election board are all appointed by the 
governor. I believe they are confirmed by the State senate, which, 
of course, is Democratic also. 

Mr. Broussard. I understand that. Now, then, how does this 
organization reach into the counties? 

Mr. Morgan. I will proceed to the next step. The State election 
board, under the law, is authorized to appoint an election board in 
each county, consisting of three persons, not more than two of whom 
shall be of the same political party. 

Mr. Broussard. Let me ask you right there, just for information, 
so we may get this right, and see how nonpartisan your elections 
are being held out there. 

Mr. Morgan. Yes, sir. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 47 

Mr. Broussard. These county boards, as was stated, are all con- 
stituted by having two Democrats and one Republican? 

Mr. Morgan. Yes, sir. 

Mr. Broussard. The Republican is the opposing party to the 
Democratic Party in Oklahoma? 

Mr. Morgan. Yes, sir. I do not know whether we ever recognized 
the Socialist Party or not. 

Mr. Broussard. In your district, have they sometimes appointed 
a Socialist as a minority man on that board? 

Mr. Morgan. I do not know whether they ever did or not. We 
had last year 40,000 Socialist votes. 

Mr. Broussard. They constitute a very important vote in your 
State; I anr aware of that. 

Mr. Morgan. I do not think they have ever appointed a Socialist, 
but they may have. 

Mr. Michener. There are two Democrats in each county board? 

Mr. Broussard. There are two Democrats in each county board? 

Mr. Morgan. Yes. 

Mr. Broussard. How does the board handle the vote by township ? 

Mr. Morgan. We have precincts. Sometimes a precinct might 
consuuife an entire township, but a precinct might be divided; but 
the coumy election board, these three, are authorized to appoint a 
precinct e!ec;ion hoard, consisting of an inspector, a chairman, and a 
clerk. 

Mr. Broussard. What are the duties of these three officers ? 

Mr. Morgan. Their duty is to receive the vote, put it in the 
ballot 

Mr. Broussard. What is the ministerial duty of the clerk? He 
keeps a list, I presume, of the men who vote ? 

Mr. Morgan. Yes, sir; and they have the ordinary duties which 
apply to those offices. 

Mr. Broussard. What does the chairman do ? 

Mr. Morgan. The inspector ? 

Mr. Broussard. The inspector. 

Mr. Morgan. Is not that right, Mr. Carney? . 

Mr. Carney. I beg your pardon ? 

Mr. Morgan. The three precinct election officers — inspectors and 
clerks. 

Mr. Broussard. I would like to know what the respective duties 
are, so that we may get at this whole election machinery in force in the 
State of Oklahoma. Every State has different machinery with regard 
to the casting of ballots, the determining of the qualification of the 
citizen who presents himself, the returns thereof and all of that. I 
want to get at the machinery in force in your State, by which the result 
is promulgated and sent to the State board. I do not care about the 
law. I merely want the information. 

Mr. Morgan. I will ask Mr. McGuire. He may be able to tell it 
more fully. 

Mr. McGuire. There are three precinct officers. 

Mr. Broussard. Name them, and what are their respective 
ministerial duties or discretionary duties ? 

Mr. Morgan. The clerk who writes the name of the applicant to 
the vote — the elector. 

Mr. Broussard. He makes a list of voters ? 



48 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. McGuire. He makes a list. 

The inspector, who is always a Democrat, passes upon the qualifica- 
tions of the voter, and the judge of the election, who is a Kepublican, 
is the third man He has not any duties except as a consultant. 

Mr. Broussard. Suppose there is a question as to whether I can 
go and vote or not. Yvno decides that —the three or the one ? 

Mr. Morgan. I will give that to you in just a second. 

The law specifically makes the inspector the sole judge of the 
qualification of the voter, if he should be challenged, and only two 
men can challenge him. 

Mr. Broussard. It requires two men to challenge him ? 

Mr. McGuire. The law specifically mentions two men who may 
challenge the 'voter. 

Mr. Broussard. Who are those two ? 

Mr. McGuire. The inspector, who passes on his qualifications, and 
then an official challenger named by the party who stands outside. 
The inspector is always there. 

Now, then, in the case of the enforcement of the grandfather clause, 
this inspector is specifically mentioned as the only person who can 
pass upon the qualifications of the applicant, and from his decision 
there is no appeal; he applies the test. 

It is a little different where someone else is voting. For instance, 
if a white man applies and makes application for a ballot, he can be 
challenged in the same way; that is, this inspector can challenge him, 
and the official challenger named by the party outside. 

Mr. Oglesby. You mean named by the minority ? 

Mr. McGuire. Named by either party. 

Mr. Oglesby. You mean there are two officials and two challengers ? 

Mr. McGuire. One representing each party. There may be more. 
They stand out 50 feet from the polls. They can challenge; they 
can follow in, I think, under the law and challenge. If he is a white 
man or an Indian, the inspector then is not the sole judge. He says, 
"No, you can not vote," but if some elector on the outside who knows 
this applicant comes in and says, "Here, I will make an affidavit that 
he has lived so long in the State, so long in the county, and so long 
in the precinct and township ; I will bring him by my affidavit within 
the purview of the law," then, he can vote, in spite of the inspector, 
who is the sole judge of the qualification, with the exception that they 
must take the vote, if offered, in case of a white man or Indian voting, 
if it is backed by these affidavits, bringing the applicant within the 
purview of the law. 

Mr. Broussard. I want to ask you this further question; by virtue 
of that section, which is known as the "grandfather clause" of the 
constitution of Oklahoma, to- wit [reading]: 

Precinct election inspectors, having charge of registration of electors, shall enforce 
the provisions of this section, at the time of registration, provided registration is 
required. Should registration be dispensed with, the precinct election officers, when 
electors apply at the polls to vote — 

Is it under this clause of the constitution that the inspection at 
each precinct is made, that the inspector at each precinct is made the 
sole judge, where the question arises as to whether the man who offers 
to vote was a son or a grandson of someone who could vote in 1866, 
at the date fixed in your constitution ? 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 49 

Mr. McGuire. That is enforced now, except this, I think that 
which you read is the law passed by the legislature 

Mr. Broussard. No; this is a part of your constitution as I read it. 

Mr. McGuire. You are reading from the constitution? 

Mr. Broussard. Yes. I just wanted to make it appear that the 
sole right of the inspector to pass upon the qualification of the elector 
applies solely to those who present themselves and may be amenable 
to this grandfather's clause of your constitution. 

Mr. McGuire. You are right; that is absolutely true. 

Mr. Broussard. Every challenge made, as to the right of the party 
to vote when he presents himself, must be decided by the three men 
who ai e appointed ? 

Mr. McGuire. No. The inspector is still the man who passes by 
practice down there, and also under a different statute regulating that. 
There is an appeal from the final decision of the inspector. 

Mr. Broussard. To whom does this appeal go ? 

Mr. McGuire. Well, if his application is backed by an affidavit, of 
two men, I thick it is — possibly one — who will swear that he is a 
legal voter, who has been in the State so long, and in the county so 
long, and township and piecinct, that he is a man of mature years, 
and all that sort of thing, that they will bring this applicant within 
the purview of the law; then the inspector must let him vote. 

Mr. Broussard. This is discretionary, is it ? 

Mr. McGuire. That is marked in the usual way. 

Mr. Broussard. Marked for identification ? 

Mr. McGuire. Marked for identification. 

Mr. Broussard. Do they pin these affidavits onto the ballot, in 
order that in the event of a controversy it may all be decided by the 
board, whatever board it may be ? I presume the county — if they 
decide the affidavits do not bring him within the purview of the right 
to vote, that they can take this ballot out and deduct it from the 
column of the party he may have voted ? 

Mr. McGuire. That is right, 

Mr. Broussard. And from the candidate for whom he may have 
voted ? 

Mr. McGuire. I do not know just how they treat the ballot, 
except I do know there is a note made of that. 

Mr. Stafford. Are the ballots numbered as they are in my own 
State « 

Mr. McGuire. Every ballot is numbered, and you can see exactly 
and clearly how that party voted. 

Mr. Taylor. Is the challenged ballot numbered ? 

Mr. McGuire. It is numbered, so you can take every step and see 
what is done. 

Mr. Broussard. The stubs have been filed here. 

Mr. Stafford. As I understand, Mr. McGuire, that practice only 
applies to white men and Indians. 

Mr. McGuire. Other than those who come within the purview 
of what is known as the '-grandfather clause." In that case the 
inspector is the sole judge. 

Mr. Broussard. Are the Indians entitled to vote under the ''grand- 
father clause ?" You have a lot of Indians out there, I know. 

46996—14 4 ; 



50 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. McGuire. All Indian tribes in my State are permitted to 
vote. There is a provision in our constitution with respect to In- 
dians that I will call your attention to later, and I do not think that 
there is any doubt but what any Indian in the State can vote, par- 
ticularly where they have had any kind of government in the past. 

Mr. Morgan. You see the "grandfather clause" says, "or persons 
who have voted in any form of government." That was put in, as I 
understand it, to let the Indians in. So, I know in some Supreme 
Court decisions 

Mr. Broussard. I notice it is changed from the original "grand- 
father clause." 

Mr. Morgan. That is in the "grandfather — — 

Mr. Broussard (interposing). I noticed that change, and I imag- 
ined it was meant to apply to the Indian. Let me ask this question: 
As a matter of practice, do they apply the "grandfather clause" 
to Indians ? 

Mr. Morgan. No, sir. 

Mr. Broussard. To any of the tribes of Indians ? 

Mr. Morgan. As I understand it — of course, on the west side, in 
my district, there are two or three thousand Indian population. 

Mr. Broussard. How many ? 

Mr. Morgan. Two or three thousand in population. 

Mr. Broussard. You mean male Indians ? 

Mr. Morgan. Of all classes of Indians — of all ages; but they won't 
vote for either side, with rare exceptions, and I do not think the 
question has ever been raised, although I understand in some decisions 
of our Supreme Court, which I have recently read, there is intima- 
tion that those Indians, not having had a form of government by 
which they voted, could not vote; that the "grandfather clause" 
would apply to them. 

Mr. Bowdle. Mr. Morgan, before you proceed to another point, 
allow me to say that I am impressed with the statement you made 
that this certificate which ran to you ought to carry weight and high 
presumption in your favor, because it seems from your political 
"enemies," so to speak. Now, may I ask whether or not that certi- 
ficate came to you after these alleged facts here before us had been 
in any way canvassed before those persons ? 

Mr. Morgan. No; the record shows here that these amended 
returns — so-called "amended returns"- were all filed a week or two 
before the election certificate was issued, which would be evidence 
in the records. Of course, as a matter of notoriety, it was three or 
four weeks before the election certificate was issued, and in, Okla- 
homa County returns were not made up for two weeks anyway, 
although they ought to have been made, we thought, within two 
days. 

Mr. Bowdle. There was no trial of this particular issue? 

Mr. Morgan. Oh, no; but I mean the facts were a matter of public 
notriety. 

Mr. Broussard. Along that line, let me ask what powers under 
your law this State board has to review any controversy of the 
character we are hearing before this committee. 

Mr. Morgan. I understand they have not power. If the returns 
are regular, they are ministerial officers. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 51 

Mr. Taylor. And the issuance of the returns was merely a clerical 
duty ? 

Mr. Morgan. Ministerial. 

Mr. Broussard. Compiled those votes as they came in, and issued 
the certificate to the man who had the highest vote ? 

Mr. Morgan. I understand that is so. 

Mr. Rogers. Do you recall the date on which those amended 
returns were filed ? 

Mr. Michener. They were filed on the 16th. 

Mr. Morgan. The amended returns were filed the 16th. 

Mr. Rogers. And it appears in your answer, on page 11 of the 
record, that your certificate of election is dated November 22. 

Mr. Morgan. Yes, sir. 

Mr. Rogers. So six days had intervened after the amended 
returns, which disclosed the charges made by the contestant, and 
which are now being canvassed before us in this contest ? 

Mr. Morgan. Yes, sir. 

Mr. Oglesby. As a matter of fact, Mr. Morgan, the State board 
gave no effect to these amended certificates at all ? 

Mr. Morgan. I think not. I do not think they considered them. 
These amended returns went to the county election board, of course. 
Whether they certified them up to the State election board — I pre- 
sume they did not. 

Mr. Broussard. Is not the controversy in this case concerning 
two counties or more ? 

Mr. Morgan. Oklahoma, Blaine, and two precincts in Canadian. 

Mr. Broussard. Three counties; there would be three county 
boards to whom these amended returns have gone ? 

Mr. Morgan. Yes, sir. 

Mr. Broussard. I merely want to get these facts, because it per- 
mits me to follow the argument. 

Mr. Morgan. I might say, further, there has been something said 
here several times about the Supreme Court decision — the question 
involved in the Supreme Court over the prosecution and conviction 
of two election officials, under elections held in 1910. I want to say 
here, and I want the committee to get that clearly in their minds, 
that while it is true that if the Supreme Court of the United States 
should hold that the so-called "grandfather clause" or law in our 
State is in conflict with the Constitution of the United States, and 
therefore that all of these negroes who were qualified voters were 
not subject to this State law, of course, then the bottom would en- 
tirely drop out of contestant's case; but the Supreme Court of the 
United States may hold every letter in that "grandfather clause" 
good law, and not in conflict with the Constitution, and yet I am 
elected, while my contestant's case wholly depends — the only thing 
they could hang on would be the idea that that matter of that law is 
void; that my election does not depend upon the "grandfather 
clause." 

We maintain, and the record shows, that whether we would have 
that law enforced or not, it is enforced; that whether Republicans 
desire to submit to it or not, they are compelled to submit to it. 
We have no choice; we are absolutely compelled to do it. 

Mr. Oglesby. But, Mr. Morgan, what ;do you say to this propo- 
sition: They contend that it was not submitted, because by reason 



52 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

of this intimidation no test of qualification was put to anybody — 
to any negroes ? 

Mr. Morgan. I was going on to say, not only that we have to 
submit to it, but in that State that law is enforced, and that would be 
the second proposition I want to enter into, because I consider that 
the main proposition in the case. 

Mr. Oglesby. Then you deny, as they assert, that these contests 
or these qualifications were applied. They say these tests were not 
applied. 

Mr. Morgan. We say they were, and that the record absolutely 
proves it. 

Mr. Stafford. Before Mr. Oglesby came in this morning, in the 
argument of Mr. Giddings, in which he claims he was citing testimony 
on direct examination of some of the elections, that the grandfather 
test was not applied, I called his attention to testimony on cross- 
examination of that same witness which would show that all of these 
persons had the certificates of registration in their possession, and the 
test had been applied to them at the time of the registration of July 
previous. 

Mr. Oglesby. Whether or not there was a contest 



Mr. Broussard. In that one precinct ? 

Mr. Morgan. In that one precinct, and in fact the brief discloses 
that is the fact. 

Mr. Oglesby. What I wanted to get at is, whether or not there was 
any conflict between the two sides over that question of fact. 

Mr. Stafford. Mr. Giddings contends if the man is registered, 
had been submitted to the test of registration, that that does not 
qualify him to vote; whereas the reading of the brief of contestee 
claims that is presumptive evidence, and he is qualified, if he has 
registered he has submitted to the test upon registration. 

Mr. Morgan. Just on that point, of course the United States cen- 
sus reports are not in evidence, but I presume in election cases that 
would be. taken notice of. The United States census reports show 
that in the second congressional district of Oklahoma that there are 
4,228 male negroes of voting age. The contestant alleges in his brief 
and only claims that there were 1,740 negroes voted. That would 
leave 2,488 negroes of voting age who did not vote, and that is prob- 
ably correct, but probably not one-half of the negroes vote. That 
is the census report, and there is their claim, and only 1,740 voted. 

Mr. Russell. How many negro voters were there ? 

Mr. Morgan. Four thousand two hundred and twenty-eight, leav- 
ing 2,488 after taking out the 1,740 votes alleged to have been voted 
in the entire district. 

Mr. Stafford. Leaving over 2,400 ? 

Mr. Morgan. Yes, sir. The same census report shows there is 
only slightly in the excess of 500 illiterate negro voters in that dis- 
trict — just a few in excess of 500. 

Mr. Broussard. That is a mighty small proportion. 

Mr. Morgan. And the same thing, right in that connection 

Mr. Broussard (interposing). I am not questioning it, but it is 
awfully small. 

Mr. Morgan. It shows there were only 1,100 illiterate white voters 
in that district; but the illiterate white voters in that district are 
double the number of illiterate negroes. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 53 

Mr. Lewis. Can you give us reference to this statement ? 

Mr. Morgan. Yes, sir. 

Mr. Lewis. Are they compiled in the form in which you state, or 
do they have to be dug out % 

Mr. Morgan. Here it gives them in counties. 

Mr. Stafford. Identify the bulletin, if you please. 

Mr. Morgan. This is Bulletin 13, Census United States, 1910 — 
Bureau of Census, issued by Dana, population of Oklahoma. 

Mr. Lewis. Is there not some distinctive number to it ? 

Mr. Oglesby. How many white voters in the district are there, 
Mr. Morgan? 

Mr. Morgan. There are in the neighborhood of 60,000. Of course, 
there is nothing like the proportion of the illiterate in the whites that 
there is in the blacks, but it is a fact that that census report shows — 
I will have it tabulated and put in my remarks, and make reference 
to the bound volume. I had that bound volume in my office, but did 
not bring it over here. You take Oklahoma — we had 1,657,155 popu- 
lation, and only 137,489 negroes; in other words, the most of our 
counties are white. The negroes are concentrated in a few counties. 
We have no race question in Oklahoma such as you have heard of 
in other Southern States, because our negro population is so small 
compared with the white population, and in all the State of Okla- 
homa, according to that census, there are only 36,841 negro voters. 
One-ninth of these are in the district. 

I had two main propositions that I wanted to discuss. One was, 
what we set up in our cross petition as to the loss of our vote in 
Blaine County; second, I want to take up the question of whether or 
not the election officers were intimidated, as shown by the record. 

Mr. Oglesby. Before you get away from that, let me ask you this 
question, if it will not interrupt }~ou. 

Mr. Morgan. That is all right. I am perfectly willing to submit. 

Mr. Oglesby. As I understand, your contention is there are only 
1,740 negroes who voted. There are 4,828 negroes in the whole dis- 
trict, and that there are about 12 per cent of the negroes in the 
whole district who are illiterate ? 

Mr. Morgan. Yes, sir; that would show that. 

Mr. Oglesby. Therefore you argue from that that the proportion 
of those who voted who are illiterate would not be greater than the 
proportion in the entire district who are illiterate, and, arguing from 
that premise, there would be not to exceed 208 of those negroes who 
voted who were illiterate ? 

Mr. Morgan. Yes, sir. 

Mr. Oglesby. And that, even if that proportion held true, it would 
not reduce your majority more than 208 ? 

Mr. Morgan. Yes; or, to put it this way: There are only a little 
over 500 illiterate negroes, according to that census, in the district. 
If they all voted, that would not overcome the 663 majority which I 
got on the face of the returns, or my 891 majority which I really had — 
if you count 3 Blaine County votes. 

I introduced that — answering your question, Mr. Oglesby — because 
counsel for the contestant here, I thought, tried to convey the impres- 
sion that the negroes down there are ignorant, unable to read, wholly 
unqualified under the "grandfather clause," rushed in there by the 
hundreds and voted, overpowered the Democratic election officials, 



54 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

and were allowed to vote. Absolutely such is not the case. For 
instance, take Oklahoma City, where he introduces the poll book of 
registration and seemed to convey the idea that those 900 represented 
all the negro votes in Oklahoma County, whereas the districts show 
that there are 9,100 negroes in Oklahoma County, and the probabili- 
ties are there are not one-half of the negroes in Oklahoma County 
voted. That is why I wanted to call the attention of the committee 
to it — so they could see in an intelligent way how many negroes there 
were down there — and according to their own contention, not ours, 
they allege there were only 1,740 negroes voted. 

Mr. Stafford. Then all of Oklahoma County is not in the second 
congressional district ? 

Mr. Morgan. Oh, yes, sir. 

Mr. Stafford. Then I did not follow you. You say there are 
9,100 negro voters ? 

Mr. Morgan. No; 9,100 negro population. 

Mr. Stafford. I beg your pardon. 

Mr. Morgan. And in Oklahoma County I have got the exact 
number according to the census, which is 3,068 votes, and he only 
alleges a vote of 1,700. 

The Chairman. How many are there in Oklahoma County ? 

Mr. Morgan. In Oklahoma County — and he only alleges 1,740 in 
the whole district. The negro voters in Oklahoma County are 3,016; 
so the negro vote is 4,228. 

I would like for the committee, for the balance of the time I use this 
forenoon, to take up the question of the Blaine County vote. 

Mr. Michener. Have you time to do that? It is now 10 minutes 
to 12 o'clock. 

The Chairman. It is about 6 minutes of 12, and we will adjourn 
until 10 o'clock to-morrow morning. 

Mr. Lewis. May I make a suggestion at this point? 

The Chairman. Yes. 

Mr. Lewis. It seems to me it would be of very great value for the 
use of the committee if we could get a tabulation of the various coun- 
ties or precincts wherein there is a contest, or wherein it is claimed 
that there are certain illiterate negroes who voted, so that we can see 
ourselves, in tabular form, just what the situation is. 

Mr. Morgan. We have that. But, let me say right there, to put 
in a point, if you will observe in reading this record — the contestant 
of course made his case, and my attorney regarded it as being so insuf- 
ficient that we did not introduce any rebuttal testimony at all, so far 
as his case in chief is concerned ; the only testimony we introduced 
was testimony to make out this Blaine County case, where we lost 
228 votes. The evidence in this case showing that the law was 
inforced is their own evidence, and yet with all that in this record, the 
contestant has not introduced at all the number of votes cast in the 
district. There is not a word in that record to show how many votes 
I received, or how many votes Judge Carney received. 

The Chairman. Suppose you take that up to-morrow and argue 
it before us. I think that is better. 

Mr. Morgan. All right. 

(Thereupon, at 12 o'clock, noon, the committee stood adjourned to 
meet to-morrow, May 1, 1914, at 10 o'clock a. m.) 



contested election case of carney vs. morgan. 55 

Committee on Elections, No. 2, 

House of Representatives, 

Friday, May 1, 191 4. 
The committee this day met, Hon. James A. Hamill (chairman), 
presiding. 

The Chairman. When we adjourned yesterday Mr. Morgan was 
addressing the committee. You may proceed with your argument 
at this time, Mr. Morgan. 

ARGUMENT OF HON. DICK T. MORGAN, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF OKLAHOMA— Continued. 

Mr. Morgan. Mr. Chairman and gentlemen of the committee, I 
have here some tables which I desire to insert in the record. The 
first one, Table No. 1, is a reproduction in the main of the statistics 
which I gave you yesterday. 

(The table referred to is as follows:) 

Table 1. — Population, voters, and illiteracy, etc., in Oklahoma. 

[Census Report, vol. 1, p. 141.] 

Total population -. 1, 657, 155 

Total negro population 137, 489 

[Census Report, vol. 1, p. 1045.] 

Total population of voting age 447, 266 

Total negro population of voting age 36, 841 

[Census Report, vol. 1, p. 1205.] 

Total illiterate population of persons over 10 years of age, including all 

classes 67, 567 

Per cent of illiteracy 5. 6 

Total illiterates of native white 33, 569 

Total illiterates of foreign-born whites 3, 828 

Making a total illiterates of white population over 10 years of age of 37, 397 

Total illiterate negroes over 10 years of age 17, 858 

Percentage of illiteracy of negro population 17. 7 

Percentage of illiteracy of negro population at voting age in Oklahoma City . 6. 2 

This is known as Table No. 1. It will be observed that in this 
table the total population of the State of Oklahoma was 1,657,155, 
and the total negro population of the State was 137,489. The total 
population in the State of voting age was 447,266, and the total negro 
population of voting age was 36,841 . 

Mr. Taylor. This table does not show the voting population in 
} 7 our district ? 

Mr. Morgan. I have another table which shows that. This table 
also shows that the total illiterate population of persons over 10 
years of age, including all classes, was 67,567, and that the percentage 
of illiteracy was 5.66. The total number of white illiterates in the 
State as shown by this table is 33,569, and the total number of 
foreign-born illiterate whites is 3,828. That makes a total of 
illiterates of white population over 10 years of age of 37,397. As 
shown by this table the total illiterate negroes over 10 years of age 
was 17,858, giving the percentage of illiteracy in the negro population 
as 17.7. The percentage of illiteracy among the negro population 
of voting age in Oklahoma City, as shown by this table was 6.2 per 
cent. 



56 



CONTESTED ELECTION CASE OF CAKNEY VS. MOEGAN. 



Later on I will introduce a table showing the percentage of illiteracy 
of the colored people in the couthern States in general. I do this to 
show you that it is a matter of fact that the colored population of 
Oklahoma, many of them are illiterate and unlearned, but yet 'on 
an average that population is far more intelligent than the colored 
population of the average southern State. And that is apparent 
and natural from the conditions which have existed in Oklahoma 
for 25 years, and the very fact that in the immigration no doubt 
more intelligent negroes immigrated from the Southern States 
rather than the less intelligent, and it seems to me rather remarkable 
that, taking the total population of the State of Oklahoma of persons 
over 10 years of age, the percentage of illiteracy is 5.6 per cent, 
while the percentage of illiteracy in Oklahoma City, of the negroes 
of voting age is higher than that of the population above 10 years of 
age, is only 6.2 per cent. In other words, the negroes of Oklahoma 
City of voting age, in point of literacy, as compared with the total 
population of the State over 10 years of age, is only 0.6 of 1 per 
cent below the average of the population of the State of Oklahoma. 
I would not have believed that myself if I had not found that in the 
Census reports. 

Now, I have prepared some other tables here, and I will give one 
copy of each of these tables to each member of the committee. 

(The tables referred to are as follows :) 

Table 2.- — Illiteracy of whites and negroes in counties comprising second congressional 

district. 

[Abstract Thirteenth Census of the United States, 1910, with the Supplement for Oklahoma, pp. 601, 603, 

605, 609, 611, 613.] 



' 


Negro. 


White. 




Negro. 


White. 


Alfalfa 




82 
89 
34 

13 
3 
1 


53 
50 
54 

186 
65 
36 

124 
75 
52 




1 

4 
286 






25 






57 






126 


Caddo . . 




(71) 






33 






74 






156 




Total 




Ellis.. 


513 


1,166 









Table No. 3. — Shoiving majorities received by Democratic candidates for State offices 

in Oklahoma County. 

[Taken from printed report of secretary of State election board.] 

Candidates for United States Senate : 

Owen, Democrat 7, 552 

Dickinson, Republican 4, 920 

Owens's majority 2, 632 

Corporation Commission: 

Love, Democrat 7, 172 

Lowen, Republican 5, 208 

Love's majority - L 964 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 



57 



Presidential electors: 

Elector, Democrat 6, 900 

Elector, Republican 5, 763 

Democratic majority 1, 137 



Congressmen at large : 

Murray, Democrat 6, 692 

Allen, Republican 5, 503 

Murray's majority 1, 189 

Thompson, Democrat 7, 005 

Brown, Republican 5, 506 

Thompson's majority 1, 499 

Weaver, Democrat — 7, 098 

Brownlee, Republican 5, 171 

Weaver's majority 1, 927 



Congressional, second district: 

Carney, Democrat 6, 837 

Morgan, Republican 5, 936 



Carney's majority. 



901 



Table No. 4. — Showing pluralities received by Democratic candidates on the State ticket 
in the second congressional district. 

[Taken from printed report of secretary of State election board.] 

Democratic United States Senator, plurality 3, 515 

Democratic presidential electors, plurality 818 

Democratic Congressmen at large: 

Weaver's plurality 565 

Murray's plurality 475 

Democratic justice of the supreme court, plurality 480 

Table No. 5. — Negro population and negro males of voting age. 

[Abstract, Thirteenth Census, 1910, with supplement for Oklahoma, pp. 600, 602, 604, 608, 612, and 601, 603, 

605, 609, 613.] 



Counties. 


Population. 


Negro 

males of 

voting age. 


Counties. 


Population. 


Negro 

males of 

voting age. 


Alfalfa 


5 

12 

1,434 

1,178 

823 

2 

291 

52 

2 


1 

4 

376 

358 

290 

1 

80 

17 

1 




4 
90 
9,227 
1 
3 
9 


2 






22 






3,068 
1 










1 






6 










13,133 


4,228 


Ellis 









This does not include Grady and Roger Mills Counties, small parts of which counties are in the second 
•district. Census shows no negro voters in Roger Mills County, and there are only two country precincts of 
Grady County in second district. 



58 CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 

Table 6.— Illiteracy of negroes of voting age in Southern States. 

[Thirteenth Census of the United States, population, vol. 1, pp. 1258, 1259.] 

Below is a table showing the percentage of illiteracy of negroes of voting age in the 
States named: 



Mississippi 41 

Arkansas 28 

Louisiana 48 

Texas 29 

Oklahoma , 20 



Virginia 36. 3 

North Carolina 38. 6 

South Carolina 43. 1 

Georgia 41. 6 

Kentucky 34. 3 

Alabama 43. 4 

Percentage of illiterate negroes of voting age in Oklahoma City (Census report, p. 
1264), 6.2. 

Mr. Giddings. What census were those figures taken from, Mr, 
Morgan ? 

Mr. Morgan. The Thirteenth Decennial Census, and the page from 
which they are taken is noted. 

Now, Mr. Chairman, at first I want to discuss 

Mr. Taylor (interposing). What does this marginal matter mean 
on Table No. 2 ? 

Mr. Morgan. That is the counties, including the counties in the 
second congressional district of Oklahoma. There is a small part of 
Caddo County and a small part of Roger Mills County in the country 
districts — two townships in Caddo County and three or four in Roger 
Mills County; and I could not find the statistics for those parts of 
counties; but that will be inconsiderable, because it shows that there 
is not a negro living in Roger Mills County. 

Now, Mr. Chairman, I want to discuss the evidence as to whether 
or not the grandfather clause was fairly enforced. We say it was 
fairly enforced. 

I first call your attention to the fact that the so- called grandfather 
statute 

The Chairman (interposing). You will prove, or you claim that 
that clause was fairly enforced ? 

Mr. Morgan. I insist it was fairly enforced, and notwithstanding 
that fact that I was elected. 

I want to call your attention to the language of this amendment, 
which gives the only direction in the constitution or in the statutes 
as to how this grandfather clause should be enforced. 

The constitutional amendment says : 

Precinct election inspectors having in charge the registration of electors shall 
enforce the provisions of this section at the time of registration, provided registration, 
be required. Should registration be dispensed with, the precinct election officers, 
when electors, apply for ballots to vote. 

Under that section the election officers, where registration is 
required, is the supreme authority, and the only authority for enforc- 
ing that provision. And where registration is not required the elec- 
tion officer is given this authority. It does not say how the election 
officers shall enforce it; it does not say what tests shall be given, or 
anything of that kind. It is simply a broad, general statute giving, 
you might say, unlimited powers, but yet giving them no instructions 
as to how to enforce that law. As I understand it, there is no statute 
doing that. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 59 

The supreme court has passed on another case, and I want to call 
your attention to that case, which is the case of Ex parte Show, and 
reported in the Criminal Reports at page 416, and in 113 Pacific 
Reporter at page 1062. It is printed in the record, beginning at 
page 200. 

Speaking of the manner and method of how election officials may 
test voters, and under what conditions they may allow them to vote, 
I want to get this particularly in your mind. It says on page 209 : 

If the election officers know that such person possesses the requisite qualifications, 
they need not apply any test. 

That is what the Supreme Court of the State of Oklahoma says, 
the highest authority which we have, and it is a Democratic authority, 
too; and I am glad to say that as a whole the people of the State of 
Oklahoma, regardless of politics, have respect for the judges of our 
supreme court, although it is entirely and exclusively Democratic. 
The court goes on to say: 

If they are satisfied from the person's affidavit that he can read and write any sec- 
tion of the Constitution they may act upon that and permit him to vote. 

First, if they know he possesses the qualifications they ma j let him 
vote; and, second, if they are satisfied from any affidavit he files that 
he is qualified to vote, they may permit him to vote. 

Then the court goes on to say: 

If they are not satisfied therefrom, they may lawfully apply the ultimate test of 
requiring such person in their presence to write a section of the Constitution of not 
unreasonable length. Eeyond this we can not go. And if they apply this test it is 
their duty in good faith to give the person an opportunity of fulfilling it, and when he 
has reasonably fulfilled the requirement to permit him. to vote. 

There is something in that. Our supreme court, Democratic as it 
is, construing a law that was more or less political, as we all will admit, 
yet that supreme court, representing the people of the State, and 
being Democratic, says: 

And when he has reasonably fulfilled the requirement to permit him to vote. Such 
a test is not unreasonable. It affords the highest, best, and ultimate proof of the pos- 
session or want of the qualification involved. The elector can not prescribe his own 
method of proving his possession of this qualification so as to preclude the election 
officers from denying, disputing, or rejecting his proffered affidavit and applying to 
him the ultimate test contemplated by the amendment. If he could, it would be 
easy to practically nullify the amendment. 

Mr. Oglesby. Let me get your contention along that line. As 
I understand it, in cities of the first class — and how large a population 
do they have to be cities of the first class % 

Mr. Morgan. As I understand it, they have to have a population 
of 2,500. 

Mr. Oglesby. In such cities you have personal registration ? 

Mr. Morgan. Yes, sir. 

Mr. Oglesby. And the registration officers have discretion in the 
matter of permitting a man to register; that is, before he can register 
he must show that he is qualified ? 

Mr. Morgan. Yes, sir. 

Mr. Oglesby. Then, in the same way, if a man comes there to regis- 
ter, and if the registration official knows that he can read and write 
this test is unnecessary; it is unnecessar3 T for the official to ask him 



60 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

that; it is like trying" to test a man who asks for a license to marry by 
asking him whether he is white or black ? 

Mr. Morgan. Yes, sir. 

Mr. Oglesby. Then they give him a certificate when he registers ? 

Mr. Morgan. Yes, sir. 

Mr. Oglesby. Having that certificate, when he comes to vote, it 
is not necessary for him to go through a second test, if he has that 
certificate ? 

Mr. Morgan. Yes, sir. 

The Chairman. Unless they want to put him through it. 

Mr. Morgan. Right there let me answer that, and read you what the 
Democratic State supreme court said. 

Mr. Oglesby. All I was trying to do was to get in my mind what 
your contention is. 

Mr. Morgan. I will quote to you again from the same case from 
which I have just quoted, the case of Ex parte Show, in which they 
indicted a man 

Mr. Giddings. Did they convict him? 

Mr. Morgan. No, they did not. If he was registered that estab- 
lished his qualifications as far as the educational test was concerned, 
and if he was registered in October, then under the amendment, the 
grandfather clause, in the absence of fraud in the registration, that 
established his qualification, so far as the educational tests were con- 
cerned. That is what the supreme court of Oklahoma said, that in 
the absence of fraud that the registration certificate gives a man 
authority to go there and vote. Of course, if it is fraudulently ob- 
tained upon false information, or if there is evidence before the men 
who are conducting the election that they had been deceived in some 
way, of course fraud vitiates everything in elections as in other things, 
but the Supreme Court says, in the absence of that, that he was en- 
titled to vote, and these gentlemen all know that in Oklahoma City 
the storm center of the negro population is in my district, that is the 
rarest thing that any election officer attempts to question the election 
certificates. I can see they would have a right to do it in case of 
fraud, because that is what the Supreme Court said. 

Mr. Russell. Oklahoma County was the only county in your dis- 
trict where they registered ? 

Mr. Morgan. No, sir. 

Mr. Russell. What other counties ? 

Mr. Morgan. El Reno, I think, and I think in Caddo County and 
several other cities. 

Mr. Russell. What is the negro population there ? 

Mr. Morgan. Seven or eight hundred negro population in Caddo 
County, but there is not a line of evidence as to how those negroes 
voted or how the election was conducted. 

Mr. Oglesby. In those cities where they had personal registration, 
your understanding of the law is that the discretion vested in the 
registration officials in the other towns where they did not have regis- 
tration, that that discretion was vested in the election officials ? 

Mr. Morgan. Un questionably, by the constitution and by the deci- 
sions in the supreme court of the State. I want to read you another 
paragraph in regard to the force of a certificate of election in this 
same case: 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 61 

On the other hand, if he had registered in October and duly presented his certificate 
of registration to the election officials when he applied to vote, in the absence of fraud 
in his registration, of which there is no legal presumption, he would have been entitled 
to vote, and if under those circumstances the petitioner had insisteo. upon applying to 
him the test alleged, and refused to permit him to vote until he should fulfill that 
test, intending under color and pretense of such test to defraud Blakemore of his right 
to vote, a right, which, so far as the educational test was concerned, had already been 
determined at the time and by the person designated by the amendment to determine 
it, such act would have constituted an offense. 

In passing upon Blakemore's case, where he is charged with crime, 
it appeared that when the voter had presented a certificate, in the 
absence of fraud, if the election officer, Blakemore, had persisted in 
requiring some other test and had refused to allow him to vote, he 
would have been guilty. 

Mr. Giddings. Do you agree with Mr. Boardman's contention that 
the precinct election officials are quasi- judicial officers 1 

Mr. Morgan. I have not studied that question. 

Mr. Oglesby. Since that has been brought up, may I ask Mr. Gid- 
dings this question in connection with it ? 

I notice in your brief, Mr. Giddings, and I think it must have 
gotten in there by inadvertence, at the bottom of page 38, you say: 
"We call your attention to the elementary proposition of law that 
neither the county election board nor the State election board had 
judicial powers, that each had to take the returns as sent to them 
by the precinct election officials; that both the county and State 
election boards were composed of ministerial officers, and that they 
did not have even quasi judicial powers, as the letter of the United 
States district attorney stated they possess. All lawyers know 
that election officials merely act in a ministerial capacity in the 
count and canvass of the returns." 

Mr. Giddings. That is an inadvertence. 

Mr. Oglesby. That letter 

Mr. Giddings (interposing). Refers to precinct elections; that is 
an inadvertence. 

Mr. Oglesby. That is what I thought, and that is what I wanted 
to find out. 

Mr. Giddings. Unless there is something else in the letter 

Mr. Oglesby. No; I went over it very carefully. 

Mi*. Morgan. Ordinarily I do not think the election officers have 
quasi judicial authority, but it appears, and we have many unusual 
things in our constitution, and some of them are very excellent, but 
yet, on the face of it, it appears that we have given the election officers 
who enforce the law quasi judicial authority. Is not the power to 
question a man and make him read and make him write and passing 
upon his reading and writing arbitrarily, is not that a quasi judicial 
power and authority ? 

Most of the gentlemen on this committee are lawyers, and I ask 
them if that is not quasi judicial authority. 

Now, more than this, I will point out this right here: If a man is 
challenged for some cause, for nonresidence, for instance, as I under- 
stand the law, and I think it will not be disputed, and if he makes an 
affidavit covering that point, the election official is compelled to 
receive his vote. 



62 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. McGuire. May I correct you right there, with the permission 
of the chairman of the committee ? I think you will find the law is 
this: He makes his affidavit and then if the inspector of elections 
also makes a statement or affidavit then the applicant is not permitted 
to vote unless some one living in the county for one year, knowing 
this applicant, makes an additional affidavit in support of the claim 
of the applicant to vote. In that event they must take his ballot 
and mark it. 

Mr. Morgan. That is the general principle. In regard to all other 
questions, so far as the qualifications by proper affidavit are con- 
cerned, a man's vote must be received, and the enforcement of the 
grandfather clause the inspector is there, absolute in his power to 
receive or refuse the vote. 

Mr. Oglesby. He passes on the qualification; there is no appeal 
from his judgment, except it is claimed he acted fraudulently or so 
disregarded his duties that it amounted to fraud. 

Mr. Morgan. You can not get the vote in except by contest; you 
might have it counted in the end, but you do not get it deposited in 
the ballot box. 

Mr. Giddings. But he could mandamus the election officials ? 

Mr. Morgan. He would have a great time on election day, would 
he not? They have held that you could not, before the election. 
Somebody tried to contest that. 

Mr. Giddings. That was by injunction. 

Mr. Morgan. By attempting to enjoin them. 

Mr. Oglesby. In our State, in order not to permit a man to be 
divested of his right to vote, whenever there is a contest of that 
character, they swear his vote in and his ballot is marked for iden- 
tification, and it is counted. That gives you an opportunity to 
detect any fraud, whereas, if it had not been cast at all, there is no 
way in which the vote would be counted if it is not deposited in the 
box. 

Mr. Giddings. That would apply in Oklahoma. 

Mr. McGuire. Not in the case of the grandfather clause. The 
inspector is the supreme judge in the case of the grandfather clause. 

Mr. Giddings. Suppose there was a fraudulent act; would he be 
the supreme judge ? 

Mr. Morgan. Now, then, I think I have given you a clear idea of 
what the Supreme Court says as to how this law should be enforced, 
and what would be a reasonable fulfilling of the requirements. 

Now, then, we contend that so far as the record shows, in every 
precinct where there has been any evidence introduced that it shows 
in regard to the negroes who voted, first, that they were all tested on 
the election, and, second, that they presented a registration certifi- 
cate, which in itself is prima lacie proof that the negro was qualified, 
or, third, he had been tested at the primary held in August, preceeding 
the election, by the inspector, in the general election of 1910, and 
was passed by the inspector on the day of the election by reason of 
his having passed the test satisfactorily at such prior elections, or, 
fourth, the fact that his being able to read and write was a matter of 
such common knowledge in the precinct in which he offered to vote, 
or of personal knowledge by the inspector, that the inspector passed 
him without the test. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 63 

And we also claim that if the evidence submitted by the contestant 
proves this to be the case, then the letter and the spirit of the grand- 
father clause was observed, the election was fairly held, and the 
contestant has failed to overcome the plurality of 891 votes given 
the contestee, and the election of the contestee should stand. In 
other words, the contestee claims that even with the strict enforce- 
ment of the grandfather law, as shown by the evidence, he was elected 
by a plurality of 891 votes, and the contestant, not having shown 
how the 15 negroes in Luther Township voted, there has been no 
evidence whatever offered by the contestant to overcome this 
plurality. 

I want to ask if the members of the committee will take the record 
and go over some of this testimony with me, because this is a sort of 
a school which we have to conduct in a case of this kind. I will ask 
you to take the record, and I will point out the pages to you and 
quote the testimony which I want to particularly call to your 
attention. 

Mr. Taylor. The- record does not disclose how many negro votes 
3'ou received, does it ? 

Mr. Morgan. No, sir. It does not show how many negro votes I 
received; only in an indefinite way shows how many negro votes 
were polled. 

Mr. Oglesby. There is nothing to show how many negro votes 
either of the nominees received, unless we could take judicial notice 
of the fact that they voted the Kepublican ticket. 

The Chairman. I think that is stretching the doctrine of judicial 
notice pretty far. 

Mr. Morgan. Now then, I want to take up the first witness. The 
first township in regard to which testimony is shown in the record was 
Dewey Township. The first witness introduced, Mr. W. I. Davis, in 
testimony which begins on page 28. 

Now then, I would like the members of the committee to notice 
what Mr. Davis testified to in regard to the effect of this circular upon 
him, in his direct examination, and then I want to call attention to 
what he testified to in his cross-examination upon the same point. 
All these witnesses which I will quote to you are witnesses of the con- 
testant, they are not my witnesses, but the witnesses of the con- 
testant. 

On page 31, near the bottom of the page, Mr. Davis testified as 
follows : 

Q. You may state what effect, if any, the receipt of those notices had upon you in 
the enforcing the election laws of the State. 

Then there was some objection made, and the witness gave this 
answer : 

A. They made me afraid to enforce the grandfather clause. 

Then at the top of page 32, he is asked this question: 

Mr. Giddings. Now, I want you to go ahead in detail and state what occurred in 
your precinct in the last general election with reference to negro voting; just say how 
many negroes came there and the effect it had. 

A. There was about— there was 48 negroes voted in the general election, I believe. 
There was quite a number, but I am not able to say just how many voted by filing with 
me what they called qualification. And there was some admitted they could not 
qualify, and I told them I would not prevent them from voting; that is, I mean to say 
that there was a few that didn 't pretend to try to qualify; there was two that tried to 



64 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

qualify and failed, then I told them — they asked then for permission to vote, I said I 
would tell you you shan't vote, hut I will tell you what I will do. If you vote I will 
protest your vote and that will be carried to the county attorney, and it will be with 
you and him whether you voted illegally or not, and then I read them the law on 
illegal voting. Those two after quite a while they got up and went out. They didn't 
ask for ballots, but others came in and filed with me what purported to be, as they 
would consider it, I suppose, a qualification, called for ballots and voted. I did not 
consider them qualifications, but still they claimed — they claimed that they were and 
that would be up to the court as to whether it was a qualification or not, and therefore 
I was afraid to interfere with them voting. 

Then he was asked: 

Q. Are you a married man? — A. I am. 
Q. Were you at this time? — A. Yes, sir. 
Q. I hand you Exhibit C and D; mark them. 
(Marked Exhibit "C," and "D.") 

Q. If it had not been for the receipt of Exhibit A and Exhibit B would you have 
permitted those negroes to have voted? 

And his answer was, "I would not." 

Mr. Taylor. What are the exhibits ? 

Mr. Morgan. Those exhibits are the affidavits^I am going to read 
them to you — or rather, they are the warning circular and the Board- 
man letter. 

Mr. Rogers. I think there is probably some mistake in the ques- 
tion, because Exhibit A is the amendment to the constitution of the 
State of Oklahoma as set out on page 8 of the record, Exhibit B is 
the Boardman letter, and Exhibit C is a warning circular. Evi- 
dently there is a little confusion in the questioning. 

Mr. Morgan. That may be. Now, turning to page 33, we will see 
what this same witness answered on cross-examination. These are 
the questions which I want to refer you to, on page 33: 

Q. How many negroes besides Alek Morgan and Joe Ashford wrote out such quali- 
fications before you? — A. I can't tell you exactly as to the number, but between 
45 and 50. 

Q. Now, this 45 or 50; they all wrote out their qualifications and took the test? — 
A. In writing; yes, sir. 

Q. Did you require them to read any part of the constitution? — A. Those that wrote, 
I did. 

Q. Now, you say there were several who came to your voting precinct there — came 
into the voting place and admitted that they could not vote? — A. That they could not 
qualify under the grandfather clause. 

Q. That they could not qualify under the grandfather clause? — A. Yes, sir. 

Q. Now, they didn't vote, did they? — A. There was two that presented them- 
selves that attempted to qualify. 

Q. And could not make it? — A. And admitted then that they could not make it. • 

Q. Now, were there any negroes in that precinct who voted who did not qualify 
by writing some part of the constitution of the State of Oklahoma? — A. Yes. 

Q. How many were there? — A. I believe four. 

Q. Four; what were their names? — A. Y. A. Watson was one. 

Q. Y. A. Watson; who were the others? — A. And a school-teacher by the name of 
Anderson was another. 

Q. Do you know his initials? — A. No; I don't remember his initials. And a school- 
teacher—I forget his name — that teaches in Dewey Township; I think it is Brite, it 
seems to me, but I would not be positive. 

Q. Who is the other one? — A. A man by the name of Smith; I forget his initials— 
and the two that attempted, oh. 

Q. Who were the two that attempted and could not make it and who did not 
vote? — A. One was named Morgan and the other McLain. 

Q. What are their initials? — A. Those two, and then there was Jones — McLain; 
I am mixed on that. McLain and Jones did not try to qualify; they didn't try to 
read or write. 



CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 65 

Now, then, go down a little further on page 34, and this occurs : 

Q. Now there is four who voted without qualifying? Y. A. Watson — can he read 
and write? — A. Yes; he was a justice of the peace. 

Q. Answer the question, — A. Yes. 

Q. Now, W. H. Anderson, the school-teacher — can he read and write? — A. He was 
vouched for, and a school-teacher, and he was allowed to vote by being vouched for 
by one of the 

Q. You didn't require him to take the tests? — A. No. 

Q. You didn't require Y. A. Watson to take the tests? — A. Didn't ask them to. 

Q. Now, as regards Brite, what do you say he does? — A. He was a school-teacher. 

Q. You didn't ask him to qualify? — A. No; I didn't. 

Q. J. B. Smith — did you ask him to qualify? — A. Yes; and the clerk of the election 
board vouched for him. I didn't know the man and didn't know whether he can 
read or write; so he vouched for him being able to read and write, and he voted. 

Now, I submit to you gentlemen, as honest, candid men 

Mr. Rogers. This was not the place where there had been previous 
registration ? 

Mr. Morgan. No, sir; that is his own witness's cross-examination, 
going into detail, and showing absolutely that there were only four 
who were not tested, and they were the school-teachers and justice 
of the peace and he knew they could read and write, and they were 
vouched for. 

What do you think about a man coming and seriously contending 
that the law was not reasonably enforced, as the Supreme Court says ? 

Now, there is another witness as to Dewey Township on page 36, 
Mr. T. J. Clark, who is a good, honest farmer. I would like you to 
turn to page 37, about one-third of the way down the page, where 
Mr. Giddings puts this question to him: 

Q. What effect, if any, did they have upon you in the enforcement of what is called, 
or commonly termed, the grandfather clause of the State? 

Mr. Morgan. Is this gentleman the Clark that was counter or clerk? 

A. Clerk. No; I didn't have anything to do with the enforcement, but I was 
afraid that we would have trouble. We didn't only get them notices, but we got 
other — I got other notices that there would be trouble there. 

Q. What were those other notices? — A. The night before election one of the 
counters came to me and told me — he said, " I wish I could get off of this board; there 
is going to be trouble there to-morrow." 

Q. Did you fear trouble there the next day? — A. Yes. 

That is what he testified to on his direct examination. 
Now, then, turn to the testimony of this same man on page 38, his 
cross-examination near the bottom of the page: 

Q. You saw Mr. Davis testing these negroes, did you? — A. Some of them. 

Q. You were in the same room? — A. Yes, sir. 

Q. And he was testifying correctly when he said he tested about 40 negroes there? — 
A. I think Mr. Davis did not just understand that question, or else I have got it wrong. 
I don't think Mr. Davis tested any of the negroes that day that he tested at the primary 
election; that is that he passed on at the primary election, except a few. That was 
my judgment; now I would not say positively, but that was my judgment of the way 
the thing was done. 

Mr. Broussard. Did these inspectors of election hold the office for 
any given period of time, or were they selected for each election ? 

Mr. Morgan. They held office for four years. 

Mr. Broussard. They were permanent election officers ? 

Mr, Morgan. Yes. 

Mr. Broussard. So that if one is tested in one election the recollec- 
tion of that test in the mind of the inspector would be sufficient for 
him not to repeat the test again ? 

46996—14—5 



66 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Morgan. Yes; they are appointed as their own successors. 
Now, I want to call your attention to the testimony of Mr. Clark at 
the top of page 39: 

Q. In other words, your remembrance of it is that Mr. Davis passed these without 
testing whom he had tested in the last primary?— A. That is my judgment; I vouched 
for some myself, and he didn't test them, I know. 

Q. Do you know Mr. Y. A. Watson?— A. Yes, sir. 

Q. Was he tested?— A. No, sir; I vouched for him. 

Q. You vouched for him; you know that he can read and write? — A. I do 

Q. And W. H. Anderson?— A. I didn't for him. 

Q. Do you know Mr. Anderson? — A. I know him when I see him. 

Q. He is a school-teacher out there?— A. I have heard he was, but I don't know it. 

Q. This Mr. Brite — what are his initials?— A. I don't know him at all. 

Q. Do you know J. B. Smith? — A. Yes, sir. 

Q. Can J. B. Smith read and write? — A. Yes, sir. 

Q. You vouched for him? A. Ye3, sir; if you will let me explain this, I can do it 
so you will understand what I mean. Davis told me anybody that we knew was all 
right — there was no use in putting them to the test — and he says anybody that you 
know is all right and you let me know, they will go. It will hurry things; we want 
everybody to vote. 

Now, I will ask you to consider the testimony further down, toward 
the bottom of the same page: 

Q. I am asking you — were there any negroes there who voted on that day who 
can't read and write that you know of, and if so, give their names. — A. I know lota 
of them who can't read their own writing after they write it. 

Q. I am asking you; read the question. 

(Question read.) 

A. I would not; I don't know as I could give their names. 

Q. Do you know of any? — A. No, I didn't know 

Q. You don't know of any? — A. I know there was lots that I would not pass; when 
I was inspector I didn't pass them. 

Q. But all you voted there you either know they could read and write or they 
passed some sort of a test? — A. I guess so. 

Q. That is right, is it?— A. I think they did. 

There are two of his own witnesses. If those negroes were not 
given a test fully up to the standard, as laid down by the State 
supreme court, then I certainly have not got my right mind. 

Now, I can not feel that there is a single gentleman here, a single 
one, who could for a minute throw out that precinct on the ground 
that the grandfather clause was not properly enforced. I think it 
is creditable to the Democratic election officials there, even if there 
are some men, as there are in all political parties, that are such 
extreme partisans, or perhaps take an unwarranted view of the things 
men may do to sustain its policy, that would want them to enforce 
the law as they did in another case here, and I want to read you now 
a case to show how the law was enforced, and how it might be 
enforced. 

I want to show howl this law might be enforced. The case of 
Snyder v. Blake, in the 35 Oklahoma Reports, at page 294, the 
opinion was filed October 22, 1912. This comes under the grand- 
father clause where one county officer brought suit for the office that 
he claimed he had been defeated from by reason of the fact that the 
negroes who were qualified were not allowed to vote, and in its opinion 
the supreme court of the State said: 

A large number of persons, variously estimated from 250 to 400, mostly negroes, 
congregated at the polling place at Vans Lake on election day. Many of them came 
for the purpose of voting. Some of them offered to qualify as voters, but were refused 
permission to do so, because the election officers were engaged at the time in exam- 



CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 67 

ining other persons as to their qualifications. One person, who had been a teacher 
in the public schools and had taught 30 years, was admitted to the booth and ques- 
tioned concerning his qualifications to vote; and, upon being required to read and 
write a portion of the constitution, he read seven or eight pages of the constitution 
and was then given a tablet and pencil to write. One of the officers read slowly to 
him from the constitution, and the proposed voter wrote as he was dictated to until 
he had written some 21 pages. After he had been detained in the booth for 2 hours 
and 15 minutes, he was held by the election officers not qualified, and was denied the 
privilege of voting. 

Another person who had been the principal of a school for five years made applica- 
tion to vote; and, upon its being determined that he would be required to read and 
write a section of the constitution, he read a section of the constitution, and thereupon 
proceeded to write dictations in the booth for an hour and 30 minutes, during most of 
which time he was employed in writing, and at the end thereof was pronounced dis- 
qualified to vote. Practically the entire day at this precinct was consumed by the 
election officers in the examining of eight persons, and the other persons at the polls 
who desired to offer to vote and be examined touching their qualifications therefor 
were denied the opportunity to do so. At another precinct no negro was permitted to 
vote unless he could immediately memorize a section of the constitution selected and 
read to him by the election inspector and write the same from memory. At this pre- 
cinct there were 40 persons present for the purpose of qualifying themselves to vote 
under the foregoing provision of the constitution. Of this number 37 could read and 
write; but under the rule adopted by the board requiring such proposed voters to 
memorize immediately any section of the constitution read to them and to write the 
same, none was able to qualify, and all were denied the privilege of voting. The con- 
duct of the election officers at these precincts can find no justification in the law, and 
their protest that they acted in good faith was refuted by their conduct. 

Mr. Taylor. Is that a Democratic court ? 

Mr. McGuire. That is a Democratic court. 

Now, gentlemen, that was the way they enforced the law in 1910 in 
that case. The citizens of Oklahoma, regardless of poliitcs, do not 
approve any such action as that. 

Mr. Michener. And neither do the courts. 

Mr. Morgan. The people of Oklahoma are not just like any north- 
ern State or any southern State. It is true we have a Democratic 
majority, but a somewhat militant Republican vote, and a strong 
progressive society there, and you can not make it like any other 
State, and a great majority of them adopted the grandfather clause, 
it is true, and when they voted for it they wanted the law enforced in 
a reasonable, fair, just, and honest way. 

Now, then, take Oklahoma County. I do not know of anybody 
complaining of the way the election was carried on there by the 
Democrats. Republicans might complain, but Democrats do not. 

There were five Republican officials elected in Oklahoma County, 
county officials, at that election, three on the general county ticket. 
Two were county commissioners in a county that went Democratic 
as high as 2,600 majority for Senator Owen, and yet there were five 
Republican candidates elected in that county. No Democratic can- 
didate has ever questioned the right and authority of that election, 
and no contest was prosecuted by anyone of the five defeated Demo- 
cratic candidates in Oklanoma County because the election officers 
did not enforce the grandfather clause, not one; because tney know 
that the general opinion is in that country among the people that the 
election officers did enforce that in a fair and reasonable way. 

But I promised to keep to my text. 

Mr. Bowdle. Is that testimony whicn you recited a few moments 
ago all the testimony covering that particular precinct? 

Mr. Morgan. Every line and word of it. 



68 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Bowdle. Is there other testimony on that? 

Kr. Morgan. I read from the witnesses — I did not read all the 
testimony of the witnesses. 

Mr. Bowdle. I understand that. 

Mr. Morgan. Mr. Davis filed an affidavit which was known, I 
think, as Exhibit K5, I think, as a protest against issuing me the cer- 
tificate. That is not in tne testimony, but it is there as one of the 
exhibits. 

Mr. Bowdle. How does it come about that tne witnesses say that 
the warning circular which has been referred to inspired fear in them, 
and yet they seem to have gone ahead and to have applied some sort 
of a test under the grandfather law ? 

Mr. Morgan. Tnat is what I have been wondering. 

Mr. Bowdle. It is simply an inconsistency in the testimony. 

Mr. Morgan. Yes, sir. I might say a good deal worse, but I 
would not, because these men were men, I think, honest, and you 
have to take the whole testimony, and there it is. 

Now, I come to Luther Township, as the testimony is given on 
page 40. There you will find the testimony of Lewis Vorel, of Luther 
Township. On page 41, on direct examination, Mr. Vorel testified: 

Q. Approximately state how many negroes there are in your precinct, male, over 
the age of 21 years, if you know.- — A. Well, the way T have of knowing is from the way 
they turn out at elections, and there is about two-thirds negroes in our township; of 
voters we have right near 120 negroes and 60 odd whites. 

Q. How many of these negroes presented themselves, in November, 1912, at the 
election to vote, if you know? — A. Why, I think right near the number I have stated, 
120, as near as I remember it. 

Now, passing over to page 42 we find this testimony: 

Q. I will rehand you contestant's Exhibit B and ask you have you ever seen a 
similar circular? — A. Why, I didn't receive this — it was after the election — in the 
mail. 

Q. When McNeill handed you the circular marked, headed, "Talk it over with 
your wife," did you read this circular? — A. Yes, sir. 

Q. What effect, if any, did it have xipon you? I mean, in the performance of your 
official duties? — A. Well, I didn't like to take the responsibility on the face of that 
and we handled the election in a different way from what we would have if that hadn't 
come up. 

Mr. Morgan. I hope he didn't mean he would handle it like they 
did in the case I read about in the decision of the Supreme Court, 
Mr. Taylor. He tells how he handled it. 
Mr. Morgan. Yes. 

Mr. Chairman. He goes on to say how he handled ? 
Mr. Morgan. Yes. This is the testimony: 

Q. In what way did you handle it different? — A. We let 14 to 15 negro voters cast 
their ballots on their own responsibility that we would have denied, they claiming 
and not being able to read and write . 

Q. How many negroes, if you remember, did you give the test to that day? — A. 
Well, not very many; not over 10 or 15, outside of these. We had been acquainted 
with those parties and they had been refused ballots at previous elections, two years 
before. 

Q. You knew then from previous acquaintance that they could not take the tests? — 
A. Yes, sir. 

Q. They had been tested, had they, at a previous election? — A. Yes, sir; and also 
at this one . 

Q. What was the results of the previous tests? — A. Well, on the question whether 
they could read and write, some of them said they couldn't, and them that claimed 
they could we tested and the others found out they couldn't by actual test. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 69 

Q. These 14 or 15 that you speak of, did they cast ballots in November, 1912, elec- 
tion? — A. Yes, sir. 

That is on his direct examination. Now, if you will turn to page 43, 
on the cross-examination — of course we concede that the evidence 
shows that there were 14 negroes who voted who could not read and 
write, but of course there is no evidence to show for whom they voted. 
If they voted and could not read and write, the election officers 
probably had to help them. There is no evidence of how they 
voted, or for whom they voted and the evidence shows that these 
14 ballots were put on a string and kept separate and sent to the 
county election board, and they could have been procured. We 
concede that there were 14 voters who could not read and write. 

Now, on page 43, under cross-examination, this testimony was 
given : 

Q. You tested and gave the test prescribed by the grandfather clause to 10 or 15 
negroes; is that right? — A. Outside of these I already mentioned; yes. 

Q. Now, how did these 10 or 15 come out on their tests? — A. Very near all quali- 
fied. 

Q. How many did qualify? — A. Well, sir, I don't know. I am ready to say that 
all of them. 

They tested the 10 or 15. 

Q. Now, there were 10 to whom you gave the tests there, and they qualified, or 15 
was it? — A. Yes, sir. 

Q. And then there were, you say, 120 negroes voted? — A. About that many, yes, 
sir. 

Q. So there were 90 who voted without tests and who were qualified? — A. I think 
so; yes; as nearly as I can remember, people that had been recommended in previous 
elections and voted, and some that we knew personally. 

You see that at that time they did for some reason let the 14 vote, 
they say, but all the others absolutely have testified that they had 
been tested at some previous election, and were allowed to vote. 

Now, at the bottom of the same page, page 43, we find this testi- 
mony: 

Q. Now, Mr. Vorel, notwithstanding the fact that a paper similar to that heretofore 
in evidence as Contestant's Exhibit A, you went ahead and tested these 10 or 15 
negroes in accordance with the grandfather clause; is that right? — A. Yes, sir. 

Q. And these 90 negroes, whom you didn't test, you didn't test them because 
you say you knew from previous experience or from your information of them that 
they could pass the test? — A. They had been voters before. 

Q. That is right, is it?— A. Yes. 

Why, here was a man who said that this so-called circular prevented 
him from enforcing the law, who, on cross-examination, swears 
that outside of these 14 men, and he even tested those 14, that he was 
intimidated and afraid to enforce the law, when every man there 
was put to the test, unless they knew that he had been previously 
tested and qualified. 

Mr. Russell. Are these the only votes which you admit were 
improperly cast ? 

Mr. Morgan. The only 14 votes we admit the record shows. 

Mr. Russell. The only votes of any kind that you admit were 
improperly cast ? 

Mr. Morgan. We do not admit they were improperly cast; we 
admit the evidence shows that they were not qualified to vote under 
the grandfather clause. 

Mr. Russell. Throughout the whole district? 



70 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Morgan. Throughout the whole district, and I will pause here 
to say if the attorney for the opposite side will point out to the 
committee in the record where it shows that outside of these 14 votes, 
where there is any specific and definite evidence that there was a single 
vote cast besides those 14 votes, except what were qualified or tested 
in some way. 

Mr. Stafford. You referred a moment ago to the fact that in 
Oklahoma County five Republicans were elected on the county ticket, 
and Senator Owen had received a plurality of 2,600 votes in" that 
county. Did Senator Owen in that campaign have any contests on ? 

Mr. Morgan. Certainly he did. 

Mr. Taylor. Is that in the record anywhere ? 

Mr. Morgan. No, sir; that is, I guess, on a par with some of the 
statements which counsel for the contestants presented here. 

I will say if you will look at Table No. 3, which I have already intro- 
duced, and which has gone into, the record, you will find there figures 
taken from the printed report of the secretary of state which shows 
that in Oklahoma County Senator Owen carried it by a majority of 
2,632; that Mr. Love, county corporation commissioner, carried 
it by 1,964; that the presidential electors carried it by a majority of 
1,137; that Congressman Murray carried it by a majority of 1,189; 
that Congressman Thompson had a majority of 1,499 ; that my genial, 
eloquent, and able friend, Claude Weaver, who is present here, carried 
his county by a majority of 1,927, and that Mr. Carney's majority in 
that county was 901, running a thousand votes behind my friend 
Weaver and about 500 votes behind Thompson, and nearly 300 votes 
behind Murray, and 1,700 votes behind Senator Owen. 

Right in that connection I want to call your attention to Table No. 
4, a table compiled from the same authority. For the whole of the 
second congressional district, the Democratic United States Senator 
carried the second congressional district by a plurality of 3,515; 
the Democratic presidential electors carried the district by a plurality 
of 818; and of the Democratic Congressmen at large, Mr. Weaver's 
plurality was 565, and Mr. Murray's plurality was 475. I am glad 
Mr. Weaver carried the district. The Democratic candidate for 
justice of the supreme court had a plurality of 480. 

Mr. Rogers. What did you carry it by ? . 

Mr. Morgan. Eight hundred and ninety-one honest votes, every 
one of them legal votes, except possibly the 14 which have been 
referred to. 

Mr. Oglesby. I understand your contention to be that in view of 
the fact that you had nothing to do with the sending out of that 
circular — that you did not do it; it was sent out without your knowl- 
edge and consent — that therefore the election, so far as you are con- 
cerned, could not be vitiated unless it was shown you received the 
benefit of this alleged intimidation; that you did not receive the 
benefit of it unless enough votes were permitted to be cast to change 
the result ? 

Mr. Morgan. Yes, sir. 

Mr. Oglesby. That is, that the definition of the term "benefit" 
could not include a situation where the number of votes you obtained 
through it did not change the result ? 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 71 

Mr. Morgan. Certainly not. I want to discuss that particular 
feature later on. 

What I was going to say was that there is the second district. I 
have shown — not by absolute evidence, but I think it will not be 
questioned — that the Democrats on the State ticket carried that dis- 
trict. At the first State election in 1907 the Democratic candidate 
for Congress carried that district by 974 votes. At the next, a State 
election, I was the Republican candidate, and I carried it by 924 votes. 

Now, then, before the 1910 election the grandfather clause was put 
in force. These were stormy times for Republicans, even hi 1910; but 
I carried it that year by 1,070 plurality — more than in 1910. 

Now, then, this election comes on in 1912, when Republican con- 
ditions were still more disturbed; when, as it were, we were fighting 
against each other; and I went out as the Republican nominee in that 
district, with Democrats, political friends of my opponent, in full 
and complete charge of the election from the ground up to the top; 
and we Republicans who were candidates there at that time recog- 
nized that men in the excitement of politics, even good men, will go 
to extremes, sometimes, and do things they ought not to do; and 
then we have a suspicion that all the Democrats of Oklahoma are not 
just what they ought to be, as probably all the Republican politicians 
in the Republican campaign are not what they ought to be; and some 
of them might go to extremes to rob a man of the votes he is justly 
entitled to and countenance such a thing. And so in this hotly con- 
tested campaign I often wondered, not whether I would get the votes, 
but whether they would be counted honestly and I should get my 
just dues, knowing that all we get is from our political adversaries. 
I think I can say there was scarcely a night, as I would lie down to 
sleep, that I would not wonder about that; and yet through it all — - 
through all that heated election campaign and after it all — I had an 
abiding faith that the majority of those Democratic election officials, 
from top to bottom, wanted to do the right thing; and I would go to 
sleep with faith in the good purposes and honesty and patriotism of 
American citizenship; and they have never failed me yet, and so I 
come here with the same spirit. 

But I want to go ahead with the facts. Now, the next testimony 
I want to take up is in regard to Luther Township, on page 46. The 
witness there is Mr. B. B. Moore. In his direct examination, as set 
forth on page 47, he says: 

Q. What was the mood and conduct of these negroes at the polls that day? Sullen 
or was it the same as usual? — A. It was about the same as usual. 

Q. Was there sullenness exhibited there that day upon their part or any A. Only 

in one case. 

Q. What was that case? — A. A fellow who would not take the tests and who would 
not say he could neither read nor write, and we would not let him vote until he did. 

Intimidate him in holy fear of the Federal election laws, and yet 
they would not let that man vote until he took the test. 
He said he would give us trouble about it. 

Q. Did the negroes at the polls that day seem to know about this circular? — A. I 
could not say whether they did or not. 

That is his direct testimony. Now, let us turn to page 48 and see 
what he said on cross-examination: 

Q. Now, leaving out of consideration these 15 — 14 or 15 — the remainder of the 
negroes who voted there that day were qualified to vote under the grandfather tests 



72 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

by reason of common knowledge, knowing that they eonld read and write or they were 
tested, were they not? — A. Yes, sir. 

Is it worth while to read any more testimony, when it is as clear as 
that ? So Dewey Township has a clear record, and Luther Township 
has a clear record with the exception of the 14 or 15 votes mentioned. 

Mr. Oglesby. You think they could not bluff those fellows down 
there ? 

Mr. Morgan. Not very much. I might say, of course, my theory 
is that it was the decision of the courts, whatever effect that had, 
which had any effect; I do not know; it is only an opinion, but what 
the decision of the Supreme Court in convicting two election officials 
did have some effect, and in the light of that case which I read to you 
it was not improper that a little sobering-up process should go on. 
I refer to the case of Snyder v. Blake. I do not think the circular 
had very much effect. It was the decision. That was a matter of 
considerable notorietj^. It was discussed freely and often in the 
newspapers. They all knew down there that two men had been 
convicted and it was a serious matter. Who was to blame? Cer- 
tainly I am not to blame for it. I am not to blame for any of the 
election laws. I think if I had been making the grandfather clause, 
if I had wanted to make it, I would have made it more specific in its 
wording; I would have put in there some specific and definite pro- 
vision to show the process you should go thiough. I sometimes 
wonder — at least I have heard people suggest that it was left indefi- 
nite and uncertain in order to leave the absolute power in the hands 
of one side. I do not believe that, but I do think it ought to have 
been made more certain. 

Mr. Broussard. The original grandfather clause in the State of 
Louisiana requires that within 12 months everyone who desires to 
avail himself of the provisions of that clause shall register himself 
under it, and that that roll, so made up, shall become a permanent 
roll, and thereafter no one should qualify under it again. So that 
while people do vote in Louisiana, recently they reopened it for six 
months for the registration of those who failed to do so during the 
first 12 months, because a great many of them refused to qualify 
under it, and yet that roll is a permanent roll; a record of it is filed 
with the secretary of state and is available to anyone who wants 
to see it. 

Mr. Stafford. How large a roll is that ? 

Mr. Broussard. Not so very large. 

Mr. Morgan. He is talking about registration; we were talking 
about the force a registration certificate should have. 

In the precinct election board, among the precinct election officers, 
all parties are represented, but in the registration there is no such 
representation. There, there is only one man. The Democratic 
election officer or the Republican officer, as the case may be, con- 
ducts that complete registration. He is clothed with absolute 
power, you might say, as to who should be registered, and in the 
secrecy — I do not know whether they do it in secret, although they 
sometimes claim they do; at least he has the absolute power, one 
man has the absolute power over the registration, which, of course, 
adds value to it, and shows that the fact is not necessary that they 
should be tested again at the polls. Now, then, I want to go through 
all the precincts, the testimony in regard to all the precincts, and I 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 73 

turn now to page 51 and take the testimony of Mr. T. H. Ray, of 
Luther Town. There is a precinct called Luther Town. There is a 
precinct called Town, and a precinct called Luther City. There are 
only 5 negro votes in Luther City. 

At the bottom of page 51 there is this testimony: 

Q. Those that voted could all read and write? — A. Yes, sir. 

Q. You knew of your own knowledge that they could read and write without 
testing? — A. There was one of them tested, Jule Thomas. 
Q. Jule Thomas was tested? — A. Yes, sir. 
Q. The balance you know can read and write? — A. Yes. 

Are you going to call any of the votes in Luther City in question 
when his own witness testified that they were all tested ? 

Mr. Rogers. Mr. Moore, whose testimony appears on page 46 — 
was he from Luther Township or Luther City ? 

Mr. Morgan. Luther Township. 

Mr. Rogers. On this typewritten memorandum which you have 
given us you have stated that the testimony in regard to Luther 
City started at page 46. That appears to be a mistake. 

Mr. Morgan. Yes; that is a mistake. 

Now, on page 52, in the testimony of Mr. H. E. Norman, from 
Luther Town, and at the bottom of page 52, on cross-examination, 
this testimony appears : 

Q. These five or six negroes out there were all qualified to vote, were they not, 
under the grandfather clause; that is, they can read and write? — A. Yes, sir; they 
can read and write. 

Q. How many were tested that day? — A. I don't think they tested but the one 
on the grandfather clause. They possibly tested another one as to his residence. I 
think there was a question 

Q. The balance of the negroes who voted there, the five or six besides the one who 
was tested and who passed the test, were all known by everyone — common knowledge 
there in the town that they were all able to read and write? — A. Generally known to 
the election officers; yes, sir. 

Do you want anything better than that ? 

Now, turning to page 53, to the testimony of Mr. Ed. E. Need- 
ham, of Greeley Township. In Greeley Township there were only 
five negroes who voted, and there is no evidence that they were 
tested, and there is no evidence that they were illiterate. The 
testimony of Mr. Needham covers only about half a page. In the 
middle of page 53 there is this testimony : 

Q. Did you receive any threats or structs to be intimidated out there that day 
in the enforcement of the grandfather clause? — A. Nothing more than we were 
threatened to be prosecuted by the central committeeman — one of the Republican 
central committeemen came up there — he came and told me he would prosecute me 
if I enforced the grandfather clause. 

I call your attention to the fact that there is one Republican 
central committeeman in a precinct where there are only five negro 
voters that did so far forget himself, I think, to go to an election 
officer and threaten to prosecute him if he enforced the law. But, 
gentlemen, I have searched this record from beginning to end, 
and I think that this is the only single solitary case out of 497 Republi- 
can precinct committeemen and Republican county committeemen, 
chairman and secretaries, Republican managers, State Republican 
organization men — there is not a line or a word to show — as far as I 
have been able to find that there is but this one Republican com- 
mitteeman who opened his mouth or uttered a word or did any act 



74 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

that indicated he was trying to interfere with those men in con- 
ducting that election according to the law of the State. 

Mr. Stafford. Mr. Chairman, I do not wish to curtail the argument 
of our colleague, but I would suggest that, as it is so extensive, 
he would confine himself just to pointing out the pertinent facts, 
because the attorneys for the contestant just pointed out the facts, 
and I do not think it necessary to comment at length upon each case 
or instance. 

Mr. Morgan. I do not intend or mean to unnecessarily occupy 
the time of the committee. 

The next witness to whose testimony I desire to call the attention 
of the committee is Mr. Frank L. Kenyon, of Choctaw Township, 
whose testimony begins at the bottom of page 53. At the top of 
page 54 there is this testimony: 

Q. Did you receive similar circulars to Exhibits A and B handed you? — A. No, sir. 

Then, on cross-examination, just below that, about the middle of 
page 54, there was this testimony: 

Q. Mr. Kenyon, you were clerk there in Choctaw Township? — A. Yes, sir. 

Q. You say five or six negroes voted? — A. I said six or seven; there possibly might 
have been only five, but the best of my knowledge was there was seven negroes voted 
out there. 

Q. What was the names of those negroes who voted? — A. Oh, I could not attempt 
to remember them. I kept no record of it only on the stubs of the ballots. 

Q. These negroes were allowed to vote by the inspector — passed by him, were 
they? — A. Those of them that qualified to readily read the Constitution and that 
could legibly write their names. 

Mr. Morgan. They were allowed to vote? 

A. Yes, sir. 

Q. And none were allowed to vote except those who did pass the test? — A. No, sir. 

Mr. Morgan. That is all. 

Now, Mr. Chairman, notice that those negroes were allowed to vote — 
those of them who qualified to readily read the Constitution. 
Q. They were allowed to vote? — A. Yes, sir. 

That was in Choctaw Township; the testimony of his own witness. 

Now, I want to go to page 55, and show you some of the testimony 
of Mr. Morris S. Baker, of Oklahoma Township. This was Mr. 
Baker's testimony on direct examination : 

Q. Did any negroes vote in that township? — A. Yes, sir. 

Q. How many? — A. What was the question? 

Q. How many negroes voted there at the last general election in November, 1912? — ■ 
A. I could not give that; somewhere from five to seven negroes voted there; I don't 
think as many as voted in the primary on the 6th of August. 

Q. Did you apply to them the test known as the grandfather test? 

Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial as to the 
Oklahoma Township, no allegations being made in the contestant's notice of contest 
regarding the conduct of the said election. 

Q. Answer the question. — A. I presented them with the Constitution; also that 
they could read and write. 

Q. Did you receive previous to the last general election — he is going to answer " No, " 
so you need not make any objection to it — similar circulars to the ones I handed you, 
marked A and B, respectively? — A. I didn't get one of those, Mr. Giddings; I don't 
think I ever saw it until I saw it here in your office. 

Q. Did you know at the time you acted as inspector of Oklahoma A precinct at the 
last election, of the conviction of Beall and Guinn in Enid for enforcement of the 
grandfather law? 

Mr. Morgan. We object to that as incompetent, irreleA^ant, and immaterial. 

A. No, sir; I don't remember of it. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 75 

Q. Do you remember about Beall and Guinn, election officials in Kingfisher County, 
who have been convicted? — A. No, sir. 

Q. In the Federal court for enforcement of this law? — A. No, sir. 

Q. Never heard of that — do you know anything about any threats having been made 
about the enforcement of that law? 

Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, 

A. I may have. Well— — 

Q. Unless you know. — A. Not that I know. I may have seen something in the 
papers. 

Now, on cross-examination, at the top of page 56 there was this 
testimony : 

Q. These negroes who did vote were tested, were they not? — A. Yes, sir. 
Q. By having them read or write the Constitution? — A. Yes, sir. 
Mr. Morgan. That is all. 

Is there any question, can there be any question about Oklahoma 
A precinct? There can not be. 

Now, I want to cite you the testimony of Mr. Frank Redding, of 
Crutcho Township. In his direct examination on page 57 he gave 
the following testimony: 

Q. Do you know how many negroes voted in Crutcho Township at the last elec- 
tion?- — A. No; I don't know the exact number. 

Q. Do you know about how many? — A. Well, there must have been something like 
eighteen or twenty, I suppose. 

Q. Do you know generally what their politics was? 

Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and. not 
being shown that the parties in question had refused to testify regarding their politics, 
or that they voted for the contestee herein. 

A. I didn't have any evidence. I could not say that I know how they voted. I 
never heard any of them say how they would vote. 

Q. I asked you what their politics was generally represented to be in that neighbor- 
hood — Republican, Democratic, Socialist, or what? 

Mr. Morgan. Same objection as last above stated. 

A. Generally represented to be Republican. 

Now, at the bottom of the- same page on cross-examination Mr. 
Redding gave this testimony: 

Q. You say there were fifteen or twenty negroes who voted? — A. I think there was 
possibly something like that. I would not make a positive statement, because I 
didn't count them at the time. 

Mr. Giddings. I object to that question as a misstatement. He said eighteen or 
twenty. 

Q. Eighteen — I got it down as fifteen. These fifteen or eighteen negroes were tested 
under the terms as to what is known as the grandfather clause, were they? — A. Well, 
part of them were — that I had seen tested at the primary and knew by doing business 
with them — knew they were capable of reading and writing — were not tested. 

Q. Speak louder, please.- — A. The one I didn't know, I did, and the others that 
I have known for a number of years and had business with them and knew they could 
read and write, I voted them without the tests. 

Q. You didn't test them and let them vote without test, because you knew they 
could read and write? — A. Yes, sir. 

Q. No negroes voted there who were not able to read and write a section of the 
constitution? — A. I don't think so. 

That would seem to be enough for Crutcho Township, but I want 
to quote to you one question of the next witness, Mr. E. A. Wagner, 
also of Crutcho Township. This is on page 58: 

Q. These negroes who did vote were all tested under the terms of the grandfather 
law by the inspector? — -A. Yes, sir. 

The next witness was Mr. C. B. Jack, who resided in Hartdell 
Township, and his testimony is set out on page 59. In his cross- 
examination this appears. 



76 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Q. Do you know whether or not these negroes who voted were qualified under the 
grandfather clause — that is, were they tested by the inspector, if you know? — A . Those 
that voted? 

Q. Yes. — A. Every one of them was qualified, so far as we understood, under the 
grandfather clause. 

That is the testimony as to Hartdell Township. 

Now, the next witness was Mr. E. A. Ringold, which begins — whose 
testimony, begins on page 59. Mr. Ringold testified that he was 
secretary of the Oklahoma County Election Board, but he does not 
testify as to the precincts. 

Now, turning to page 62, we have the testimony of Mr. J. W. 
Sorrells. He was an inspector in Oklahoma City, not in a country 
precinct. They did not apply the test because they came there with 
certificates. 

Then turning again to page 64 there is testimony of Mr. J. E. 
Lucas, who is in the same precinct in Oklahoma City. There were 
just two precincts in Oklahoma City on which there was any evidence 
introduced, or in which there was any charge of fraud or intimidation 
for illegal votes — just two in Oklahoma City. 

Mr. B. B. Moore testified as to Luther Township, his testimony 
beginning on page 66. That testimony brings out the same fact, 
that there were 146 there, and only 14 of them were protested. 

Mr. Rogers. Had not Mr. Moore been called to the stand before? 

Mr. Morgan. Yes, sir. 

Mr. Rogers. He testified also on page 46 ? 

Mr. Morgan. Yes, sir. If you will turn to page 69, you will find 
the testimony of Mr. William H. Seiler, of Spring Creek precinct. 
There is no charge of any illegal voting there, and nothing shown. 
It don't show that any negro voter voted there. The evidence is 
introduced to show he received one of the circulars. 

On page 70 there is further testimony of Mr. Ringold, introduced 
not for the purpose of showing the condition of the votes in any pre- 
cinct, but simply to show what votes I received in certain precincts 
and what votes Mr. Carney received, and for the purpose of introduc- 
ing certain stubs of these votes. His testimony does not relate in 
any way to illegal voters in any specific cases. 

Now, turning to page 74 we have the testimony of Mr. W. W. 
Barker, of Springer Township, Jones City. In his direct examination, 
on page 75, there is this testimony: 

Q. Do you know what effect that had in the enforcement of — strike that — do you 
know what effect those circulars had in the enforcement of what was commonly called 
the grandfather clause; that is to say, what effect it had on the election officers of 
that precinct? 

Mr. Morgan. Objected to, as incompetent, irrelevant, and immaterial, and calling 
for the conclusion of the witness. 

A. Yes, sir. 

Q. What? 

Mr. Morgan. Objected to, as incompetent, irrelevant, and immaterial, and calling 
for the conclusion and opinion of the witness. 

A. We permitted them all to vote. 

That sounds a little dangerous. This testimony continued: 

Q. Why were you afraid to enforce the grandfather clause down there? 

Mr. Morgan. We object to that as incompetent, irrelevant, and immaterial, and 
assuming a state of facts not proven. 

A. Well, most of all of them were familiar with the condition out here, of the con- 
viction of two or three fellows on the election board at Enid. I think they all had 
the same fear of the same thing. 



CONTESTED ELECTION CASE OF CARNEY VS. MOEGAN. 77 

It was the conviction of these men and not the circular that was 
in their minds. 

Now, take the cross-examination of Mr. Barker as set out at the 
bottom of page 76: 

Q. Who was it tested the negroes, Mr. Lowp, or yourself? — A. Mr. Lowp would 
test them when they asked for a ticket. 

Q. What sort of test would he apply to these negroes who presented themselves? — 
A. He would ask them if they could read and write. 

Q. If they would say they could, would he pass them? — A. No; he generally put 
them under test. 

Q. Put all of them under test? — A. And then he would pass them out 

Q. You say all the negroes who voted there were tested by Mr. Lowp according to 
the best of your knowledge? — A. Yes; I think they was. 

Q. Did you turn any of them down? — A. No. 

Q. But he did test them all? — A. Yes, sir. 

Q. And had them write some part of the constitution of the State of Oklahoma? — 
A. No; I think he had them to read, mostly. 

There could not be any question about Springer Township. 

Now, I want to call your attention to some of the testimony of Mr. 
F. H. Morris, of Deep Fork Township, which begins on page 78. I 
want to call your attention to the testimony he gave upon cross- 
examination, as set out on page 79. 

Mr. Rogers. On page 76 there is a question and answer beyond 
that which you last read, to which I want to call your attention: 

Q. Now, do you know of any negro who was allowed to vote who can not read and 
write? — A. Oh, sure. 

That seems to be in conflict with the earlier testimony ? 

Mr. Morgan. And the next question is 

Mr. Rogers (interposing). I suppose the effect left by that last 
pair of questions and answers is that Mr. Lowp's testing was inade- 
quate or unfair; either one of the two. Was Mr. Lowp a Democrat 
or Republican ? 

Mr. Morgan. He was a Democrat. 

Mr. Rogers. Was he the inspector ? 

Mr. Morgan. I think he was the inspector. 

Mr. Giddings. The testimony of Mr. Barker at the top of page 75 
shows that Mr. Lowp at the time this testimony was taken was sick 
in bed. 

Mr. Rogers. He was sick in bed at the time the testimony was 
taken, but he was an inspector. 

Mr. Morgan. Yes, sir. 

Mr. Rogers. You would say then, that even though Mr. Lowp's 
examination was inadequate, nevertheless his decision as a result of 
that examination was conclusive, under the law. Is that the fact ? 

Mr. Morgan. Unquestionably. In the cross-examination of Mr. 
Morris, as set out just below the middle of page 79, there is this: 

Q. And if they said they could read and write you gave them the ballot, did you? — 
A. Yes, sir. 

Q. And neither Mr. Burnsworth or yourself applied any further test to them? — A. 
No, sir. 

Q. Now, were there any negroes who were tested that day by Mr. Burnsworth or by 
yourself? — A. Yes, sir; I think we put the test to about two or three, beginning in the 
morning. 

Q. Did they pass the test all right? — A. No, sir; we turned them down— until late in 
the afternoon. 

Q. Until late in the afternoon, then you let them vote? — A. Yes; they got boisterous 
and we thought we would pass them in. 



78 CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 

Q. Who got boisterous? — A. The negroes and the white people together. We had a 
little trouble. 

Q. What were the names of these two or three you tested and turned down. — A. I 
don't remember; yes, I can give you one of them. Maybe I can give you two. Fred 
Trent and Anderson Harrison; and I don't know whether there was another one or not, 
but I think — I don't remember his name. 

Q. Those were the only two that were tested that day? — A. We quit applying the 
test from that time on. 

Now, then, the next witness is Mr. C. E. Burnsworth, of Deep Fork 
Township, and his testimony begins on page 80. 

Now, in the direct examination of Mr. Burnsworth as set out on 
page 81 there is this testimony: 

Q. Did you compel any of those negroes to read and write a section of the Constitu- 
tion? — A. Not at the general election, but at the primary I did. 

Q. At the general election, that is what I am asking about? — A. From the simple 
fact I had tested them at the primary and I knew. 

Q. Those you didn't know about did you test them by making them read a section 
of the Constitution and write it? — A. Well, no. 

In Mr. Burnsworth's cross examination, at the bottom of page 
81 

Mr. Rogers (interposing). Who was Mr. Morris? 

Mr. Morgan. He was clerk of the election board. 

Mr. Broussard. How does it come about that you test in a pri- 
mary — that these negroes, being Republicans were tested by a Demo- 
cratic inspector ? 

Mr. Morgan. When the State primary is held, under our law, it is 
just the same as the regular election; that is, the same election board 
passes on both, and conducts both. 

Mr. Broussard. Do they hold the primaries on the same day for 
all parties ? 

Mr. Morgan. All parties. 

Mr. Broussard. Vote in the same booth ? 

Mr. Morgan. Vote in same booths and have distinct and separate 
tickets. 

Mr. Broussard. But they vote for their own candidates — the Re- 
publicans, the Democrats, and Socialists ? 

Mr. Morgan. The voter calls for the tickets of his party, and he 
votes his own ticket. 

Mr. Broussard. I could not understand how a Democratic inspec- 
tor happened to pass on the qualifications of a Republican elector. 

Mr. Oglesby. That seems to be the modern theory. 

Mr. Morgan. On cross-examination this same witness, Mr. Bums- 
worth, at the bottom of page 81, testified as follows: 

Q. Now, you say, Mr. Burnsworth, you didn't compel all the negroes to read and 
write the constitution at the last general election as a test? — A. No, sir. 

Q. Because of the fact you had tested most of them at the primary and knew whether 
or not they could read and write? — A. Yes, sir. 

Q. That is right. How many of this seventy that you say voted had been tested 
by you in the primary? — A. I could not say exactly. 

Q. About how many? — A. Well, I put all — most all — of them to the test at the 
primary. 

Q. And those that you had tested at the primary you didn't require the test of 
them at the general election in November, 1912? — A. Nothing; only I would just 
ask them the question, from the simple fact I remembered whether or not the test 
at the primary. 

Q. Now, then, about how many negroes did you test at the general election? — A. I 
think it was five. 

Q. What was the result of that test? — A. They could not read and write, and I 
refused them a ballot. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 79 

Then you tell me the election was not enforced ? Then Mr. Burns- 
worth gave this further testimony on page 82 : 

Q. Now, who did this testing out there, Mr. Burnsworth? — A. I did it myself, 
most of it. 

Q. So you tested five? — A. I think it was five. 

Q. And turned those down? — A. Yes, sir. 

Q. And the balance of the negroes who voted, you knew them, and had tested 
them at the primary election? — A. Yes, sir. 

Q. And let them vote? That is all. 

Mr. Giddings. That is all. 

Mr. Morgan. Mr. Burnsworth, you are a Democrat, are you not? 

A. Yes, sir. 

Mr. Morgan. That is all. 

Mr. Gidbings. That is all. 

Mr. Bowdle. Did this terrorizing circular go out before or after 
the election ? 

Mi". Morgan. I do not know when it went out. So far as this 
evidence shows, it says it went out before the general election. 

Mr. Rogers. It was dated October 31, 1912, and the general 
election was held on November 5, 1912, was it not? 

Mr. Morgan. I think so. 

Mr. Rogers. Then it went out about five days before the general 
election. 

Mr. Stafford. Does this gentleman, Mr. Fred A. Wagoner, to 
whom the letter of the Federal district attorney, as shown by Ex- 
hibit B, was sent, reside in your district? 

Mr. Morgan. No, sir. 

Mr. Stafford. He is not a support of either you or the contestant? 

Mr. Morgan. No, sir; now, in order to complete these outside 
townships, I would like to have you turn to page 212 of the record, 
where you will find additional testimony for the contestant. This 
is the testimony of Mr. Sherman NefT, who testified that he resides 
in El Reno, in Canadian County. There is only evidence intro- 
duced in one precinct in Canadian County. In his direct examina- 
tion, on page 212, he testified as follows: 

Q. I will ask you, Mr. Neff, if, on that date, before negroes were permitted to vote, 
if they were tested as to their ability to read and write sections of the constitution, as 
provided by the laws of Oklahoma? — A. I have given all the negro voters, with a very 
few exceptions, that test, but not on this date; but the negroes who can't make it, as 
a rule, are shy of coming to the polls. We turned, I think, two down that day that 
we didn't think could vote intelligently. That's the best of my recollection. 

Q. Then, as I understand you, Mr. Neff, the laws of Oklahoma, as they existed at 
that time, applicable to negro voters, were not enforced in that precinct at the general 
election of 1912? — A. Well, we think that we enforced the law. 

Then, on cross examination, as set out on page 213, he gave the 
following testimony: 

Q. Do you know of any negro having voted at that election who was not qualified 
under the law to vote at that time? — A. To the best of my knowledge there was not. 

Q. To what extent were you informed as to the qualifications of the negroes that 
were allowed to vote? State fully. — A. Well, I personally did not think it was neces- 
sary to put the test every time that these fellows wanted to vote, as I was acquainted 
with them, and had given it to them once prior to that time — to most of them. 

Q. Do you know how a negro voted that day for Congressman? — A. No, sir; I 
don't. 

Now, then, in regard to the city of El Reno, the next witness, 
Mr. H. D. Fortner, on the same point, in his direct examination, 
on page 214, said. 



80 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Q. Do you recall at this time whether or not, prior to the general election of 1912 r 
you received from any Federal official any card or instructions or advice against the 
enforcement of the test required of the negro voters by the laws of Oklahoma? — A. 
No, sir; I didn't receive any. 

Q. As I understand it, Mr. Fortner, the negroes that voted in precinct A of the 
second ward of the city of El Reno, at the general election of 1912, did so without 
submitting to the test required of negro voters by the laws of the State of Oklahoma? — 
A. Yes, sir. 

On cross-examination Mr. Fortner, on page 215, testified as 
follows: 

Q. Now, what test was required, as you understand it? — A. To be able to read and 
write a clause of the constitution of the State of Oklahoma. 

Q. Do you know that there was a negro voted at that election who could not do 
this? — A /No, sir. 

Gentlemen, I think I have read testimony from every single pre- 
cinct in Oklahoma and Canadian Counties. There were two or three 
precincts in Blaine County concerning which the contestant put no 
evidence in, but cross examined our witnesses, but in every precinct 
in Oklahoma County and in one or two precincts in Canadian County 
I think I have read what the witnesses said showing that without a 
single exception that the men were tested or had been registered in 
July, three months before the so-called circular was alleged to have 
been circulated, and certainly that circular could not have had the 
effect to reach back three months. It shows that first they had been 
tested or registered, that the election officer had such knowledge 
that they had been tested at the primary, or they had some personal 
knowledge, with the exception of those 14 votes. 

I call upon the opposition to point to a single case, a single vote, 
or one single township where it was not enforced. I have been 
unable to find it. 

I do not want to mislead this committee about these facts, but I 
have searched the record, have gone over all the testimony, and I 
have taken every one of the townships, and certainly the gentleman 
will not claim that he can take any advantage of what occurred in 
other precincts in the district, but must be confined to the precincts 
in which there is some evidence introduced. 

Mr. Rogers. How many voting precincts are there in the entire 
district ? 

Mr. Morgan. There are 497. 

Mr. Rogers. As to how many of those precincts was affirmative 
evidence offered by the contestant that there was fraud ? There 
are 17 on your list, but 'some of them you said there was no evi- 
dence offered by the contestant. 

Mr. Morgan. All those in Blaine County, then in Oklahoma City 
and in El Reno, and in the Canadian precincts evidence in the case 
was taken after the time 

Mr. Rogers (interposing). Of course we don't know, we are not 
familiar with the names of the counties. 

Mr. Morgan. The vote in Blaine County, where there are 228 
votes involved — I don't need them at all. I would like to have Mr. 
Michener go into that. 

(Thereupon, at 12.05 o'clock p. m., the committee adjourned to 
meet at 10 o'clock a. m., tomorrow/Saturday, May 2, 1914.) 



contested election case of caeney vs. morgan. 81 

Committee on Elections No. 2, 

House of Representatives, 

Saturday, May 2, 1914- 

The committee this clay met, Hon. James A. Hamill (chairman) , 
presiding. 

The Chairman. The committee will come to order. A quorum is 
present and the contestee may proceed. If, during the argument, 
the quorum is broken for a period, both parties to the contest agree to 
continue the argument before the remaining members until a sum- 
cient number of members arrive to consitute a quorum. 

Mr. Broussard. Before going further with your argument, in the 
list which you submitted yesterday you went over about 11 or 12 
precincts. Now, there are 4 or 5 of them that you did not mention 
and I would like to know whether these precincts are not in con- 
troversy in this matter. 

Mr. Morgan. I think, Mr. Broussard, that I went through every 
precinct that the contestant had introduced in evidence or where 
there was any evidence that negroes voted. That is what I aimed 
to do. I certainly think I went over more than 12 of the precincts. 

Mr. Broussard. On the list which I have here I find Flynn Town- 
ship, East Dixon No. 9, Carlton Township, East Lincoln No. 30, Wa- 
tonga Township and precinct A, second ward. I do not recall that 
you quoted any testimony with regard to these and I wanted to know 
whether they were in controversy. 

Mr. Morgan. I think not in controversy. 

Mr. Broussard. And I wondered why they were on this list. 

Mr. Morgan. There are a number of precincts introduced here 
that are not in controversy on the question of intimidation. 

Mr. Broussard. I see. That is what I wanted to understand. 

Mr. Morgan. That was largely a list of those where there was any 
controversy about enforcing the grandfather clause. 

Mr. Broussard. I wanted to get that clear in my mind. 

Mr. Morgan. I turned from page to page; I had each one marked, 
and I aimed not to omit any. 

STATEMENT OF HON. DICK T. MORGAN— Continued. 

Mr. Morgan. Now, Mr. Chairman and gentlemen, for fear that it 
might be crowded out in my remarks as I go along and take up too 
much time on other matters, I want first to take up the question of 
the alleged letter supposed to have been written by Mr. Boardman, 
and the circular headed, "Talk it over with your wife, Mr. Election 
Officer," and first make a few remarks on the matter, and then I 
want to submit to any questions that the chairman or other mem- 
bers of the committee may wish to put to me concerning that propo- 
sition. 

Now, Mr. Chairman, my attorneys gave due notice and took my 
deposition. The opposition did not appear to cross-examine me in 
any way. My deposition appears in the record on page 168, con- 
tinuing over to page 171. I first want to read my sworn testimony 
and then, of course, I am ready to submit to any questions. On page 
169 this question is put: 

Q. State whether or not you in any way, directly or indirectly, in person or through 
your friends, supporters, managers, or assistants, or through any political committee 

46996—14 6 



82 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

or any committeeman, or any other person, made any effort to induce negroes to vote 
at the November election, or encouraged negroes to vote at the November election, 
or advised negroes to vote at the said election who were not qualified to vote under 
the constitution and the laws of the State of Oklahoma? — A. I did not. In the cam- 
paign previous to the election on the 5th of November, 1912, I did not personally 
advise a single negro to vote or attempt to vote at said election unless he was qualified 
to vote under the constitution and the laws of the State of Oklahoma; I did not, 
directly or indirectly, through any of my friends, supporters, managers, or assistants, 
or through any political committee or committeeman or any other person whatsoever, 
make any effort to secure or induce negroes to vote at said election who were not 
qualified to vote under the constitution and laws of the State, as I understood the law, 
the responsibility of determining who were qualified electors at said election and who 
were entitled to vote at said election rested entirely with the election officers, who 
had been appointed under tne laws of the State, and I made no effort whatever with 
any election officers or officer to induce them to permit any person to vote who was 
not qualified under the constitution and laws of the State of Oklahoma. I did not 
advise any person or persons to encourage, aid, or assist any person in voting or to 
vote who was not qualified to vote under the State law. In fact, in that campaign I 
paid no attention whatever to the matter of aiding or assisting or encouraging in any 
way any person or persons to vote on election day except what I might have said in 
a general way in public speaking, advising all qualified electors to go to the polls and 
vote; but in no way, shape, or form did I participate in any effort or in any attempt 
to have any person, white or black, vote at said election who was not qualified to vote 
under the State laws . 

Now, on page 170, this question was put: 

Q. In the notice of contest served on you by the contestant, John J. Carney, refer- 
ence is made to an alleged letter that was written by one Homer N. Boardman, United 
States attorney , together with a certain alleged printed circular, which was entitled 
"Talk it over with your wife, Mr. Election Official." Please state what knowledge 
you have, if any, of such alleged letter and circular and state any and all things you 
know about the printing and circulation of said alleged circular and what, If anything, 
you had to do with the same. — A. I had no knowledge whatever of said alleged letter 
purported to have been written by Homer N. Boardman, United States attorney, or 
the alleged circular, until sometime after the election held on the 5th of November, 
1912. All I know about it now is through some reports that I have read in newspapers 
with reference thereto and from knowledge I have received from the papers in this 
case. I do not know personally that any such letter was ever written by the said 
Homer N. Boardman. I did not consult with Boardman about any such letter. He 
did not write any such letter with my knowledge, counsel, or advice, and if he wrote 
any such letter it was not written with my approval, advice, or consent. I had no 
knowledge whatever of the printing of the alleged circular referred to. The same was 
not printed with my knowledge, consent, or approval, and neither the said alleged 
letter or the said alleged circular were printed or circulated or published in any 
manner or form with my consent, knowledge, approval, or connivance. If sucn a 
letter was written, published, and circulated, or sent through the mails, or in any 
other way transmitted or delivered to any election officer or to election officers in my 
district, the said printing, circulation, and transmission through the mails was entirely 
and absolutely without my knowledge, consent, or approval. Such letter and cir- 
cular I am sure was not printed or circulated by the committee that had my campaign 
in charge, and so far as I have been able to ascertain no person connected in any way 
with the management, control, and direction of my campaign had anything whatever 
to do with the printing, the circulation, and distribution of anj such letter or circular. 

Now, Mr. Barritt Galloway was the secretary of the congressional 
committee of the second district and he testified on page 171. On 
page 172 this question was put to him: 

Q. I will ask you if you have read the allegation in the notice of the contest that 
was served in this case by John J. Carney upon Dick T. Morgan and that portion of 
said notice in which it is alleged that a certain letter was written by Homer N. Board- 
man, United States attorney, and that a certain alleged circular was printed which 
was entitled, "Talk it over with your wife, Mr. Election Official," and a charge that 
said alleged letter and said alleged circular was sent to the election officers of the said 
congressional district with the view and purpose of intimidating said election officers 
and thus preventing them from enforcing what is known as the "grandfather clause" 
of the State constitution as against negro voters? — A. I have read the same. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 83 

Q. You may state whether or not said alleged letter or any similar letter was printed 
or circulated or mailed by the Republican congressional committee of the second dis- 
trict of Oklahcma at any time during said campaign prior to November 6, 19i2. 

And in a previous question he testified that he had charge of the 
distribution of literature. 

A. No such letter was printed, circulated, or mailed from the headquarters under 
my direction or with my consent or knowledge. 

Q. Do you know whether or not such letter was printed, circulated, or mailed 
by said committee from said headquarters? — A. I know that no such letter was printed 
there or circulated from said headquarters. 

Q. I will ask you to state if the alleged circular entitled "Talk it over with your 
wife, Mr. Election Officer," was printed, mailed, or distributed by the Republican 
congressional committee from said headquarters? — A. No such circular was printed, 
circulated, or mailed from the headquarters of the Republican congressional committee 
of the second district. 

Q. State whether or not the Republican congressional committee had anything 
to do whatever, either with the writing, printing, circulation, or mailing of either 
the said alleged letter referred to or said alleged circular? — A. The committee had 
nothing to do whatever with said letter or circular, to my knowledge. 

Now Mr. Porter H. Morgan, who is my son, testifies on page 177. 
He testifies that he was acting campaign manager and acting chair- 
man of the congressional committee by reason of the fact that the 
chairman was called away from the office for about six or seven 
weeks of the campaign, practically all the campaign, and that he 
was compelled to take charge, and he testifies that he had charge, 
On page 178 he testifies: 

Q. Are you acquainted with Homer N. Boardman, United States district attorney 
for the western district of Oklahoma? — A. Yes, sir. 

Q. Did you talk with Mr. Boardman prior to the 5th day of November, 1912, or 
on said day, relative to any letter of the sort shown in Exhibit B of contestant 's notice 
of contest? — A. I did not. Mr. Boardman was in Lawton in Federal court most of 
the time during the three weeks preceding the 5th day of November, 1912, and I did 
not talk with him prior to the day of the election relative to this letter or any other 
letter of that sort. 

Q. Did you or any other members of the committee have anything to do with the 
printing or circulation of this or any other letters or circulars similar in character to 
Exhibit B, contestant's notice of contest? — A. No, sir. 

Q. Was the letter, as shown in contestant's Exhibit B to his notice of contest, 
written with your consent, your knowledge or with your approbation, or did you 
enter into any conspiracy with any one to write, have printed and circulated any 
such letter? — A. No, sir. 

Q. Did you know before the 5th day of November that the letter, a copy of which 
is attached to contestant's notice of contest and marked ' 'Exhibit B, " was being cir- 
culated among or sent to the precinct election officers or circulated among them? — A. 
No, sir; I did not. 

Q. Handing you a carbon copy of the contestant's notice of contest, I will ask you 
to examine Exhibit C thereof, and will ask you if you did, prior to the 5th day of 
November, 1912, see the original or any copy of said circular? — A. No,_sir. 

Q. Did you see, prior to the 5th day of November, 1912, or on said day, copies 
thereof which were printed and which have heretofore been introduced in evidence 
by the contestant? — A. No, sir. 

Q. Did you at any time prior to or on the 5th day of November, 1912, see any copies 
of Exhibit C, which is attached to contestant's notice of contest? — A. I saw no copy 
of or original of the circular as shown as Exhibit C until a day or two are the election 
on the 5th day of November, 1912. 

Q. Did you talk with Mr. Homer N. Boardman prior to the 5th day of November, 
1912, or on said day relative to a circular of the sort shown as Exhibit of the con- 
testant's notice of contest? — A. I did not. 

Q. Did you or any other member or members of the congressional committee have 
anything to do with the printing or circulation of this or of any other circular similar 
in character to this Exhibit C? — A. No, sir, 

Q. Was this circular as shown as contestant's Exhibit C to his notice of contest 
written or composed with your consent, knowledge, or approbation, or did you enter 



84 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

into any plan or conspiracy with any one to write, compose, have printed, or circulated 
any such circular ? — A. I did not. 

Q. Did you know before the 5th day of November, 1912, or on said date, that such 
a circular had been composed, written, printed, or circulated among or sent to the 
precinct election officers in the second congressional district of the State of Okla- 
homa? — A. No, sir. 

Q. Are you one of the attorneys for the contestee, Dick T. Morgan, in this cause? — 
A. Yes; the firm of Morgan & Deupree, of which I am a member, are attorneys for the 
contestee Dick T. Morgan. 

Now, contestant was given clue notice and did not appear to cross- 
examine either myself, my acting chairman, or the secretary of the 
committee. I tried in that testimony to make it so broad and com- 
prehensive, thorough, and far-reaching to cover every possible way 
that I might have any connection with that circular. Mr. Boardman, 
as is well known, lives in Oklahoma City, and was not asked to be 
brought forward to testify by the contestant. I will state that my 
election certificate was issued on the 22d day of November, and from 
the election up until the 22d day of November, under the circum- 
stances that existed, you might know that I had plenty to look after 
until I got my certificate, especially if you know just the conditions 
that existed there. 

Mr. Bowdle. In the three active working days that elapsed 
between, let us say, the receipt of that letter and the election, did you 
hear in any way any talk about such a letter having been received by 
anybody ? 

Mr. Morgan. Not a word. 

Mr. Bowdle. I ask that because I had thought to ask you earlier 
whether you had taken any attitude at the time in regard to it, but 
I see that is sufficiently answered by the fact that you had very little 
time. 

Mr. Morgan. Well, Mr. Bowdle, I will right here cease, and say 
what I was going to say a little further along the line, and that is that 
I want the committee to be absolutely free to put to me, without any 
embarrassment on your part, any question that you may have to put 
concerning that alleged letter or that alleged circular. 

Mr. Bowdle. Do you not think it extremely curious, not to say 
significant, that this letter should go out at this critical time ? I say 
critical time because it afforded nobody any opportunity to counter 
it in any way. I say, did you not regard that as an exceedingly 
significant and curious thing ? 

Mr. Morgan. Now or since it was issued ? 

Mr. Bowdle. Well, when you first heard about it. 

Mr. Morgan. Well, I suppose whoever did it put it out at the 
latter part of the election possibly with that in view. I do not know 
that I ever thought about that particular line. 

Mr. Bowdle. The only reason I speak of it is that it is such an 
extraordinary thing for people to rise up spontaneously in campaigns 
and rush into print for candidates unless those who do rise up have 
some motive. 

Mr. Morgan. I have no doubt that whoever circulated it was trying 
to help or injure somebody in the election. 

The Chairman. You have no doubt now as to the character of that 
letter ? 

Mr. Morgan. In what way ? 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 85 

The Chairman. You say you had no connection with it in any 
way. Was there any mention of it made in the newspapers ? 

Mr. Morgan. Before election ? 

The Chairman. Yes. 

Mr. Morgan. Not that I saw. 

Mr. Giddings. It was in the newspapers all over the district. 

The Chairman. I do not think the committee has any doubt that 
it was a most unjust thing and most contemptible thing, whoever 
sent it out. It was sent out to a class of men who do not have the 
opportunity to study the law and who reverence the law. It was 
sent out with the threat that if they did not do what the district 
attorney said was in compliance with the law that they would go 
to the penitentiary. Speaking for myself, and I think I reflect the 
views of the committee, it was a most despicable thing, the sending 
out of that letter in the campaign. However, that is not connected 
with you; you say you knew nothing about it. 

Mr. Morgan. No. If there are any other questions, I hope you 
will feel free to ask me about it. 

Mr. Oglesby. Did Mr. Wagoner have any connection with the 
Republican campaign committee in that district ? 

Mr. Morgan. Not in my district. Mr. Wagoner lives in Chandler. 

Mr. Oglesby. He does not live in your district ? 

Mr. Morgan. No; and had no connection whatever, in the slightest 
degree, with my campaign. 

Mr. Giddings. Mr. Wagoner is attorney of record in one of the 
other contests. 

Mr. Morgan. For fear there might be some misunderstanding 
about the remark made about his connection with another contest, 
I want to say that Mr. Wagoner had no connection with my contest. 

Mr. McGuire. Since my case has been mentioned I would like to 
make this statement: Mr. Wagoner lives probably 75 miles from 
me and I know him very well. After this case was begun, leading 
counsel for Mr. Davi^, a gentlemen of integrity, was a ked who 
would be a good lawyer in that town for me to get to take the evidence 
down there. Now, I speak of that at this time so that if any member 
of the committee wants to make any inquiry of leading counsel for 
Mr. Davi-, as to whether he recommended Mr. Wagoner, he may do 
so. 

Mr. Giddings. You know that Mr. Wagoner knew about this letter? 

Mr. McGuire. Absolutely not. 

The Chairman. Mr. Morgan, you have the floor. 

Mr. McGuire. I beg your pardon for the interruption. 

Mr. Morgan. My time is somewhat limited; I feel that way about 
it and I do not want this thing prolonged. 

The Chairman. Unless these admissions are by consent they are 
outside of the record. You know we can not con-ider anything 
except what is in the record, unless it is admitted by both parties at 
the hearing. 

Mr. Oglesby. Mr. Morgan, I would like to know whether you have 
taken any steps to ascertain who is responsible for this anonymous 
circular or letter Mr. Boardman sent out, and if so what you have 
found out. 

Mr. Morgan. The election occurred, of course, on the 5th of No- 
vember and my certificate was issued on the 22d. There was some 



86 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN, 

controversy going on all the time between the election and the time 
of the issuance of the certificate about who was elected, and all that, 
both sides claiming it. So that I was putting in every minute and 
hour. I had to try to protect what I thought were my rights After 
securing my certificate I left immediately for Washington. Of 
course, Congress was to meet in December and, as you know, we 
stayed here until the next December. I was not home, if I remember 
correctly, until October of last year for two or three weeks. Well, 
I did not do much. I did not see or talk to Mr. Boardman. I do not 
think I saw him in all that time until I went home. My attorneys, 
of course, tried my case down there. I was not down there at all 
during the trial of the case, possibly. Now, there were two days that 
I visited the State legislature. Several boys went down there when 
they had up the redisricting bill; I went down there two days. But 
I had no time to give to any matter except with the legislature, to 
meet some of the members of the legislature. My attorneys, of 
course, tried the case. They did not introduce any testimony, so 
far as rebuttal was concerned of anything that the contestant had 
presented in making his case, because they thought that the contest- 
ant's own evidence absolutely made a clear case for us. 

The Chairman. Do you know now ? 

Mr. Morgan. Yes, sir. This summer, or sometime this fall, I 
talked with Mr. Boardman about this matter. Mr. Boardman told 
me that he was at Lawton as United States attorney during several 
weeks previous to the election, which is probably 100 miles or more 
from Oklahoma City or Guthrie; that he was very busy, because only 
a few months before he had been appointed United States attorney; 
that he was a new man, had much to learn and was anxious to acquit 
himself well; that he was called up over the phone by the assistants 
in his office saying that a letter had been received from Mr. Wagoner 
asking these questions; that they had prepared or would prepare the 
letter which they read to him over the phone and asked his approval 
of the letter. I suppose they had that custom. He heard it read 
over the phone, approved it and authorized them to sign his name to it. 
He said that he had no connection with the circular and had no idea 
that this was to be used in the campaign. 

The Chairman. That is what I meant particularly. Do you know 
who sent out the circular ? 

Mr. Morgan. Absolutely I have not been able in any way to find 
out who sent out the circular. I do not know any more than you 
gentlemen know. 

Mr. Oglesby. Mr. Boardman disclaimed having given it out? 

Mr. Morgan. Mr. Boardman, of course, disclaimed having given 
it out; not only, that he did not give it out but that he had no con- 
nection with this circular and had no idea that it would be used in the 
way it was. Now, are there any other questions along that line? 

Mr. Oglesby. Do you hold Mr. Wagoner somewhat responsible in 
your own mind ? 

Mr. Morgan. I would not want to convict anybody. 

Mr. Oglesby. That is the reason why I wanted to ask my question 
off the record ; I would like to find out. I do not know of how much 
importance it is. 

Mr. Giddings. May I ask him a question? Do you not know that 
orders for Mr. Boardman to take this course came from the Attorney 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 87 

General, Mr. Wickersham ? That the law was unconstitutional and 
that that originally came from Washington ? 

Mr. Morgan. To write this letter? 

Mr. Giddings. To take up the proposition of the Federal prose- 
cution of these men if the} 7 enforced what was held to be an uncon- 
stitutional law ? 

Mr. Morgan. No, sir; I have heard no such thing. 

Mr. Oglesby. I do not think the enforcement of that law has 
anything to do with this; it is purely the question of the circulation 
of that anonymous circular in connection with this letter. 

Mr. Morgan. I want to say this, and then you can ask further 
questions. Mr. Boardman" was my campaign manager in 1910; we 
called him the chairman of the congressional committee. He was 
elected to that position by members of the committee in 1910. He 
served in that position efficiently, and subsequently was an applicant 
for United States attorney. I indorsed him for that position, there 
being quite a good many Republicans who waited the place, and after 
a long fight President Taft appointed him. Now, Mr. Chairman, Mi\ 
Boardman absolutely had no connection with my campaign in 1912. 
I do not think I saw Mr. Boardman or spoke to him for two months 
previous to the election. We have a large district. I put in eight 
weeks and more, going every day, making from two to five speeches a 
day, just barely running into my headquarters and out again. It was 
a strenuous campaign. Mr. Boardman had been .appointed United 
States attorney; he had his hands full to fulfill the duties of his office. 
Mr. Boardman was a man of the very highest character and discretion, 
for that matter; he is not an extreme partisan in any sense or anything 
of that kind; a man who would do his duty as he saw it regardless of 
how it might affect him. It is not possible that Mr. Boardman, when 
he authorized the sending of that letter, had the least idea or concep- 
tion that it was going to be used as a campaign document, and much 
less did he think that such a circular as this was to be attached to it 
and sent out there to be used as it was. 

Mr. Bowdle. Do you think he had any adequate ground for such a 
thought as you now announce when we consider that within so short a 
time before the election he issued a letter couched in such fervid and 
vigorous language ? 

Mr. Morgan. Well, you call it fervid and vigorous language. Of 
course, there is the letter; it is for you gentlemen to decide whether 
that is a fair letter or how unfair it was. It is not for me. 

Mr. Bowdle. Allow me to say right there that had that letter been 
written a month or two months before the election the language would 
hardly have been of any significance; it would have been purely 
judicial language, such as an opinion should be couched in, but coming 
so short a time before the election does it not strike you that that 
language is just a little bit fervid ? 

Mr. Morgan. Well, it probably was, but there is this view of it: 
Here is a State law; here is the decision of the Supreme Court of the 
State on that law holding it constitutional; here is the United States 
law; here is the decision of the United States court, and so far as I am 
concerned I gave to the Democratic supreme court of the State credit 
for the same good faith in construing the question according to their 
honest belief as I do to the United States judges. Three men, or two 
men, have been tried and, as far as I know, tried honestly; they have 



88 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

been convicted and sentenced to three years in the penitentiary. 
Now, there is a conflict and is it surprising that there should be a con- 
flict of views ? The man who was to reap a benefit from the strict 
enforcement of that State law naturally would be partisan on that 
side; on the other hand the man who would reap a benefit in the elec- 
tion from its nor enforcement would very naturally, from his view- 
point, have the same partisan view that the other side would, and he 
would do things that the other side would not approve and the other 
side would do things he would not approve. 

Mr. Chairman, you heard the decision I read about how the grand- 
father clause was enforced in at least one county in the election before. 
That was no doubt an extreme case, but when such a thing as that 
took place it was natural for those on the other side to feel that the 
same thing might be perpetrated. But I do not know what prompted 
these men. So far as I am concerned I do not approve the sending 
out of that circular. I do not approve that kind of politics. Every 
man in politics has his way and his ideas of how to run a campaign 
and how to win, but the use of such methods as that would not appeal 
to me at all. I am ready to have my record and my method of con- 
ducting campaigns absolutely investigated from beginning to end, and 
it is generally well known, I think, that I would not resort to that kind 
of a method. 

Mr. Oglesby. I am glad to hear you say you do not approve of that 
circular. I got the impression yesterday from something you said 
that you thought perhaps there was something that called for its 
issuance, and I am glad to have that impression changed. 

Mr. Morgan. No. Some men think that the way to win an election 
is to go out with some unusual thing or use some underhand methods, 
but I do not approve of those things; they do not appeal to me. I 
have never used them and I never will use them. If I can stay in 
public life as long as I am inclined to be a candidate, by using the 
right kind of methods, all right. 

Mr. Oglesby. Do you not think this circular goes a good deal 
farther than what might ordinarily be termed sharp practices or 
sharp methods of political trickery ? 

Mr. Morgan. Well, to my mind I think it does, yes, and I can not 
think of any worse term than that. Now, Mr. Chairman, I want to 
spend some time on what you might call the cross petition of the 
contestee. I would like you to look at the record on page 106, where 
our testimony begins. The evidence clearly shows that in Blaine 
County the county election board met on the evening of the 5th of 
November and proceeded to take up the canvassing and counting of 
the votes. 

Mr. Oglesby. Do you think we are competent to pass on the 
question as to whether or not you are entitled to have certain votes 
added? 

Mr. Morgan. Unquestionably so, yes, the same as a court would. 
You could not have contested elections if you did not do that. Sup- 
pose they had thrown out a thousand votes or 1,500 votes, enough to 
give Mr. Carney a certificate ? 

Mr. Oglesby. But you got the certificate. 

Mr. Morgan. Yes, sir; I do not claim that I need these votes, but 
I want the committee to take into consideration the fact that certain 
votes were thrown out. I do not claim that it is necessary to add 



CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 89 

these votes to my vote to elect me or to hold the certificate, but I 
want the committee to get in their minds the fact that I was really, 
on the face of the returns, elected by 891 instead of 663, as the 
returns of the State election board show. 

Mr. Oglesby. That is, you would like a committee finding to that 
effect ? 

Mr. Morgan. I will be satisfied if the committee holds that I 
retain my seat. 

Mr. Oglesby. Well, that is what I say. I was trying to find out 
whether you insisted that the committee should make any such 
findings. 

Mr. Morgan. I do not mean a written finding in your report. 1 
do not know how you make that up, but my understanding is that it 
goes one way or the other, that in making their recommendation 
they recommend one way or the other. 

Mr. Oglesby. From any aspect of the case, how would these 
additional 228 votes make any difference in your election ? 

Mr. Morgan. I do not think it would make any difference. 

Mr. Oglesby. Then that is the point. 

Mr. Morgan. Because I am elected without those votes. But I 
can not tell just exactly what is in the mind of every member of the 
committee. I suppose the committee will go over these votes, and 
if certain votes were illegal they would throw them out and not count 
them, just as a court would. Hence I want my majority to appear 
before the committee just what it is and what it was, and that 1 
consider it took a crime to take those 228 votes away. I want the 
committee to know that I got 891 votes just as honestly as any 
member of this committee got the votes that were certified to them. 
It was not only a wrongful act, but I will show you that it was an act 
that was contrary to a statute of the State. 

Mr. Oglesby. It only occurred to me that no matter how you 
figured, those votes would not make any difference either way. 

Mr. Morgan. It would not affect the election. 

Mr. Oglesby. And if you had any such idea we might save some 
time. 

Mr. Morgan. It would not affect the election; I was elected with- 
out those, as the State board determined. 

Mr. Oglesby. And if the contention of the other side is correct, 
you will be defeated, even if you got those ? 

Mr. Morgan. No, sir; I do not know what contention they make. 

Mr. Oglesby. What I had in mind was this 

Mr. Morgan. What do you mean by their contention ? 

Mr. Oglesby. These votes would not make any difference if their 
contention is sustained. 

Mr. Morgan. What is their contention? I do not know what 
their contention is. Has the gentleman said how many illegal votes 
were cast, specified to the committee just how many and pointed 
them out ? 

Mr. Oglesby. I had intended to ask Mr. Giddings to make a state- 
ment as to what his contention was. 

Mr. Morgan. I can not conceive what their contention is. 

Mr. Oglesby. I understand his contention to be that your election 
is illegal because of the fact that this circular was sent out which 
intimated the voters and that, therefore, whether you had anything 



90 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

to do with it or not, you are not entitled to the benefit of the votes 
that were cast for you which should not have been cast and, there- 
fore, it would hinge upon the legal interpretation of the benefit 

Mr. Morgan (interposing). Yes; but would it not hinge on how 
many illegal votes were cast ? 

Mr. Oglesby. I say, it hinges on the legal interpretation of what 
benefit means; could you be said, in legal terms, to have had the 
benefit of ttese votes if you did not get enough to elect you or to 
change the result. 

Mr. Rogers. And then Mr. Giddings makes the further point that 
not being able to determine accurately which votes were tainted the 
whole thing is inextricably mixed up and, therefore, it is to be 
regarded that the election was void. That is his position. 

Mr. Morgan. Well, I do not think, as I said before, that these votes 
affect my election or that my election depends on whether these 
votes are counted for me, but I want to say that they were not 
counted. In order to show the real vote in Blaine County the contes- 
tee introduced the tabulation that was made in the county by the 
county election board of Blaine County on the 5th and 6th of Novem- 
ber. You will find that on page 161 of the record there is a tabula- 
tion that was made by the county election board showing the vote 
that each person received, Federal, State, and county. It is Exhibit 
A on page 181. It runs over to page 182 and says, "For Represen- 
tative in Congress, second district, J. J. Carney, 1,171; Dick T. 
Morgan, 1,351," giving Morgan 180 majority in the county. Now, 
then, if you will turn to page 186 you will find a certificate by the- 
secretary of the State election board as to the vote that was certi- 
fied to the State election board, which leaves out 11 precints. In 
other words, the State election board's report, which they got from 
the county election board, is just like theirs only these 11 precincts 
are not included. On page 185 you will find, for Representative in 
Congress, second district, Carney, 814, and Morgan, 772, giving Car- 
ney a majority of 42 votes, whereas according to the first tabulation, 
counting all the votes, I had a majority of 180, but according to the 
second tabulation, as certified to the State election board, Mr. Carney 
had a majority of 42. 

Mr. Brotjssard. Were these precincts rejected as a whole or cer- 
tain votes cast out ? 

Mr. Morgan. If you will notice they are precinct No. 6, Cedar 
Valley; precinct No. 9, East Dixon; precinct No. 10, West Lincoln; 
precinct No. 12, Logan; precinct No. 13, Flynn; precinct No. 20, 
Watonga township; precinct No. 23, Canton; precinct No. 28, West 
Dixon; precinct No. 29, Carlton; precinct No. 30, East Lincoln, and 
precinct No. 8, Arapahoe. 

Mr. Broussard. Those were the precincts about which I asked 
some questions ? 

Mr. Morgan. Yes. 

Mr. Rogers. They are represented there by blank lines. 

Mr. Morgan. In the first tabulation that was made those pre- 
cincts were included and the returns gave me a majority of 180. 
Now then, my attorneys, in order to make it stronger and prove the 
same f cts by another method, subpoenaed the officers of every one 
of these precinct election boards, brought them into court, and required 



CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 



91 



them to testify as to the returns. I have prepared a table of the 
returns as shown by the testimony of the election officers. That 
class of testimony begins on page 109. The first witness introduced 
was Mr. Taylor, clerk of the district court — whose testimony begins 
on page 107 — and he first identified, on page 108, the actual returns, 
the papers themselves, made in each one of those 11 precincts. 
There they are, all actually identified and marked as exhibits. Now 
then, on page 109, the precinct officer of Flynn township was intro- 
duced, and he identified those returns as the ones that were sent in, 
and those returns are printed as Exhibit 10 on page 111. That 
kind of testimony extends from page 111 over to page 147, precinct 
by precinct. Now, in this table 8, which I have handed to you, I 
have made a tabulation of votes in the 11 precincts which were 
thrown out by the Blaine County election board, showing a loss to 
Morgan of 228 votes. I have shown in this table the page in the 
record containing the returns as made. Flynn Township, on page 
112, East Dixon, page 115, West Dixon, page 119, Arapahoe, page 
121, Canton, page 124, Carlton, page 128, East Lincoln, page 132, 
Cedar Valley, page 135, Logan, page 138, Lincoln, page 141, and 
Watonga, page 146. That tabulation shows that according to the 
returns of the precinct election officers of those precincts Mr. Carney 
received 351 votes and that Morgan received 579 votes, giving 
Morgan a majority in those 11 precincts of 228 votes, so that Morgan, 
by throwing out these 11 precincts, lost 228 votes, and if these 228 
votes be added to the 663 votes, as admitted by the contestant in 
his contest notice as my plurality according to the State election 
board, my plurality in the district would be 891 votes. 

Table No. 8. — Tabulation of votes in the 11 precincts which were thrown out by the 
Blaine County election board, showing a loss to Morgan of 228 votes. 



Township. 


Precinct 
No. 


Page. 


Carney. 


Morgan. 


Flynn 


13 

9 
28 

8 
23 
29 
30 

6 
12 
10 
20 


112 
115 
119 
121 
124 
128 
132 
135 
138 
141 
146 


13 
33 
25 
27 
55 
13 
10 
30 
52 
45 
48 


22 




39 




39 




47 




104 




51 




30 


Cedar Valley 


39 




80 




39 




89 








351 


579 



Total vote for Morgan in 11 precincts 579 

Total vote for Carney in 11 precincts 351 

Morgan's majority in 11 precincts 228 

Net loss to Morgan, 228. 

Two hundred and twenty-eight votes added to 663 votes conceded to have been Morgan's plurality on 
the face of the returns to the State election board makes Morgan's plurality in the district 891. 

Mr. Taylor. Perhaps you have stated it, but I was not present. 
Why were these votes thrown out ? 

Mr. Morgan. That is just the point I am coming to. I want the 
committee to see that we had clear, absolute, and unquestionable 
proof that those 11 precincts were thrown out. Now the question is 



92 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

why they were thrown out. I have here volume 38 of the Supreme 
Court Reports of the State of Oklahoma, and on page 652 

Mr. Taylor (interposing) . I want to ask whether the record any- 
where shows why they were thrown out ? 

Mr. Morgan. Yes, sir; the record shows. Mr. Broady was the 
Republican member of that county election board. He was put on 
the witness stand and he testified — well, you asked me why they were 
thrown out. 

Mr. Taylor. Whether the record shows, and then you can show 
in your own way. 

Mr. Morgan. Mr. Broady testified that the county election board 
met and was in session two days; that they counted the votes, made 
a tabulation, and that the secretary of the county election board 
signed those returns and the county election board adjourned and 
he supposed the thing was complete. The testimony shows that 
after the board adjourned they went to Oklahoma City — that is, the 
Democratic chairman of the board and the Democratic secretary, 
Mr. Hogan and Mr. Mosley. The record shows that he conferred 
there with Mr. Gould, who was Mr. Carney's manager in this cam- 
paign. The record shows that he said he went there and consulted 
with Mr. Gould, who was Mr. Carney's campaign manager, or one of 
them. The time when they did the work is not known, but on the 
13th, 14th, or 15th of November, Mr. Hogan, the Democratic chair- 
man, and Mr. Mosley, the Democratic secretary of that county elec- 
tion board, met somewhere — nobody knows where they met — and set 
aside the finding they had made before ; they made a record that 
after throwing out 1 1 precincts Morgan received so much and Carney 
received so much, and that they did this work without the knowledge, 
without the consent, and without notice to the other member of the 
board, and that they told the Republican member that the reason 
they did not notify him was that they wanted to head him off so that 
the Republicans could not get a mandate, writ, or something to pre- 
vent them from doing it. 

Mr. Taylor. They were pretty frank about that ? 

Mr. Morgan. Yes. Now, then, I have this case which I am going 
to read to you from the supreme court. But I have here the Watonga 
Republican, which is a Republican paper, as I understand it. 

Mr. Taylor. Do you know whether they were thrown out as to 
other candidates besides those for Congress ? 

Mr. Morgan. Oh, yes; it elected four Democratic county officials, 
three or four at least in the county. 

Mr. Giddings. And the Federal court, before which these men 
were tried, found that these election officials had not committed any 
offense. 

Mr. Morgan. If it did that would be the only case where a Federal 
court was fair in the estimation of Mr. Giddings. But I will say 
this, that I understand these two men were indicted in the Federal 
court. 

Mr. Giddings. By Mr. Boardman, the United States attorney? 

Mr. Morgan. Yes; he was the United States attorney. I under- 
stand that the United States attorney believed an offense was com- 
mitted. The indictment was demurred to. Mr. Giddings was coun- 
sel, as I understand it, for the defendants and the demurrer was 
argued before Judge Cotteral, United States judge, and the United 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 93 

States judge held — I am not very familiar with it — that the national 
law that was in controversy, under which these men were indicted, 
applied solely to where a man was debarred from voting; that it did 
not have reference to where a man had made a false certificate or 
had thrown votes out. In other words, the judge held that if the 
votes got in the ballot box that then this statute could not apply. 
These votes were all in the ballot box; they were all brought up to the 
county election board, and if they committed any offense at all under 
the United States statute it was another offense. I understand that 
that case has been certified to the Supreme Court of the United 
States and is pending there. It is pending there, is it not, Mr. 
Giddings ? 

Mr. Giddings. Yes. 

Mr. Oglesby. What did the county election board do ? 

Mr. Stafford. I do not believe these briefs give the name or cita- 
tion of that case. 

Mr. Giddings. It is the case of the United States v. Hogan and 
Moseley. 

Mr. Morgan. Now, I have here the Watonga Republican, printed 
at Watonga, Blaine County, Okla., Thursday, January 9, 1913. It 
gives the complete decision of Judge Tolbert, who is the district 
judge of the district in which Blaine County is situated. Here is his 
decision, and I have his findings of fact and the supreme court 
decision, which I will read after I read this. But this will give you 
some idea of Judge Tolbert's decision. Judge Tolbert is a Demo- 
cratic judge and is now one of the prominent candidates for Congress 
in the new district created down there, and I understand that he 
will probably be here and be your colleague in the next Congress, if 
not mine; I hope he will be mine. This case is entitled: 

In the District Court of Blaine County, State of Oklahoma. Jacob Wildman, plain- 
tiff, v. S. M. Allen and the County Election Board of Blaine County, State of Okla- 
homa, composed of Dan Hogan, Tom Moseley, and W. C. Broady, defendants. 
Gentlemen: I have listened with considerable interest to the evidence in this case 
and the stipulations in the other two cases, and have given good attention to the argu- 
ment of counsel, which has been comparatively brief on the law, and ordinarily would 
be inclined to be more fully advised as to the law of the case; but as we desire to bring 
this matter to a close I shall render such judgment on the record as I think proper. 

The facts are undisputed. The material facts are that the defendants composed 
the two Democratic members of the election board of this county and together with 
the other members, the Republican member'. Immediately after the election they 
met as the law requires to receive the returns from the various voting precincts through- 
out the county and did receive the returns which in their face were apparently regu- 
lar, showing that the plaintiff received a plurality of the votes cast; that certificates 
of election for the various county officers were written out by the secretary of the board 
at the time and all signed by the Republican member, W. C. Broady, except Wild- 
man's, and under the facts the court is of the opinion and finds that he signed that 
certificate; but after the board had formally adjourned and the defendants in this 
case some days afterward, about the 13th or 14th of the same month, after being advised 
from some one in Oklahoma City concerning their legal rights, met in the absence and 
without notice to the Republican member, threw out the precincts referred to, which 
reduced the vote of the plaintiff, and gave another person, S. M. Allen, the plurality 
vote to which they issued the certificate. 

I understand that the law is well settled in this State. Their duties are ministerial; 
they have no discretion to go beyond the election returns. It is their duty to cast up 
and declare results and not pass on the legality of the election had or any votes cast at 
the election. That being so, the plaintiff was entitled to a certificate of election on 
November 7, when they first met according to the record prepared. The only ques- 
tion now involved is whether or not the defendants, the two defendants in this case, 
could defeat Ms right to the certificate by their subsequent conduct in throwing out 
these precincts, which reduced his plurality to a minority, by issuing a certificate to 



94 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Allen. To say that the defendants would have that right — saying the election 
board would have that right, would say that any two members of the election board 
in this State could arbitrarily change the complete results of the election in any county 
or any subdivision thereof. 

I fully appreciate the law, that the certificate of election is the simple prima facie 
title to office, and ordinarily the adverse party would have to institute quo warranto 
proceeding to test the right of office. I don't believe it would be good in a case like 
this case, where the defendants, without a reasonable excuse or legal cause or even 
pretended legal cause, simply threw out these votes, precincts, to change the result 
and thereby throw the burden in a contest of quo warranto proceedings. 

It is therefore ordered that the writ be granted and, the defendants being parties 
to this action, the board convene and issue certificates of election to the plaintiffs in 
this action as per journal entry, and that, the board are ordered to convene and issue 
this certificate and deliver it to the plaintiff on or before January 2, 1913, or give a 
good and sufficient supersedeas bond staying the judgment in the value of $1,000, as 
per journal entry. 

That case was taken to the supreme court of the State. The 
title of the case is Allen v. Wilclman (38 Okla. Repts., p. 652). The 
opinion was rendered July 29, 1913. The court below made certain 
findings of fact. There is a large number of findings of fact, but I 
will only read those which I think especially apply to the issue in 
this case. Findings of fact No. 5: 

Blaine County is divided into 31 voting precincts, of which the following are in 
commissioners' districts No. 1, to wit, 9, 10, 11, 12, 15, 18, 19, 21, 25, 26, 27, 28, and 30. 

Mr. Giddings. Will you give me that citation ? 

Mr. Morgan. 38 Oklahoma, page 652, Allen v. Wildman. That 
is a commissioners' district; this case was between two county com- 
missioners. Finding No. 7 : 

Plaintiff admits that said election was regularly and duly held in said various 
voting precincts in said commissioners' district except in voting precincts Nos. 12 
and 30, and the election in these two voting precincts, the defendant claims and 
charges, was null and void, and by reason thereof, not counting the votes therein, he 
received a majority of the legal votes cast in said commissioners' district. 

Finding No. 9 : 

That the election inspectors in voting precincts 12 and 30, prior to the election, 
received through the mail Exhibits 8 and 9, which are as follows. 

In that case they call them Exhibits 8 and 9, while in this case they 
are called letter and circular. But in that case they quote the same 
circular and letter which we have here word for word. 

Finding No. 10: 

The evidence failed to connect the plaintiff in any way with the printing and 
mailing of said exhibits, and the court is unable to determine from the evidence 
who caused the said exhibits to be printed and mailed to the said election officers. 

Mr. Taylor. Who was the plaintiff in this case ? 

Mr. Morgan. Mr. Allen was the plaintiff in the supreme court. 

Mr. Rogers. It is the same case on appeal which you read a news- 
paper extract from ? 

Mr. Morgan. Yes, sir; on appeal. These are Judge Tolbert's find- 
ings of fact; the other was his opinion. 

Mr. Ogeesby. Allen was a candidate for a county office ? 

Mr. Morgan. Yes; and these same precincts were involved. 

Mr. Rogers. His name does not appear on this tabulation in the 
record ? 

Mr. Morgan. No; because this is the national ticket. I think it 
does on the county ticket. 

Mr. Rogers. I do not find it. 

Mr. Morgan. Look at contestee's Exhibit A. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 95 

Mr. Rogers. I have been looking at that, but I do not find it. On 
page 181, is that the thing? 

Mr. Morgan. That is true; it does not appear there. 

Mr. Rogers. It is merely the Federal ticket ? 

Mr. Morgan. Yes, sir; that is the Federal ticket. Now, finding 18: 

In voting precinct No. 12 there were 17 votes cast by negroes, and of these 13 can 
read and write the English language, and 4 can- not and could not. 

Finding No. 22: 

One white man who was not a regular voter under the laws of this State by reason 
of not having been in the State for a period of 12 months prior to the election was 
permitted to vote for the State ticket. 

Finding No. 23: 

One negro voter who could not read or write the English language was furnished 
a ballot, and permitted to vote for State officers, and not permitted to vote for the 
county ticket. 

Finding No. 25: 

The county election board duly met in session and remained in session November 
6 and 7 for the purpose of tabulating the returns from the various voting precincts. 

Finding No. 26: 

That from the returns thus made from the voting precincts in this commissioners' 
district the tabulation showed that the plaintiff herein had received 467 votes, and 
the defendant 424 votes, and the socialist candidate 190 votes. 

Finding No. 27: 

Pursuant to such returns and tabulation a certificate of election was made out by the 
secretary of the election board to the plaintiff, and on November 7 was signed by Tom 
Mosely, secretary of the election board, and W. C. Broady, another member, but was 
never delivered to the plaintiff. 

Finding No. 28: 

That subsequent thereto, and on or about November 11, the chairman of the county 
election board and the secretary thereof met in their office in the courthouse at 
Watonga, and, after considering the returns and tabulation further, threw out 11 
voting precincts of the county, which included precincts Nos. 9, 10, 12, 28, 30, after 
which they tabulated the remaining voting precincts in this commissioners' district 
No. l,and the aggregate showed. that the defendant received a plurality of 26 votes, 
and pursuant thereto the said two members of the county election board issued and 
delivered to the defendant a certificate of election as commissioner from district No. 1 
aforesaid. 

Finding No. 29: 

The other member of the county election board, Mr. W. C. Broady, had no notice 
or knowledge of the action of the chairman and secretary of the county election board 
in subsequently tabulating the returns and throwing out the election precincts afore- 
said until after the same had been done and the certificate of election had been 
issued, as herein stated. 

Finding No. '32: 

In voting precinct No. 30 the court finds that 25 votes were cast by negroes. 
Finding No. 33: 

Of these 25 voters the court finds that five of them could not read and write the 
English language; that six were tested, and, after testing them as to their ability to 
read and write the English language, four were refused the privilege of voting, and 
two were permitted to vote; that there were three on the outside who could not read 
and write, and who, by reason of the action of the election officials, did not vote or 
offer to vote. 

Finding No. 34: 

At this voting precinct the court finds that the inspector, upon asking those negroes 
if they could read and write and upon receiving from them an affirmative answer, 
permitted them to vote without further test. 



96 CONTESTED ELECTION CASE OE CARNEY VS. MORGAN. 

Finding No. 37: 

In regard to Exhibits 8 and 9 the court finds that in this box the effect of these 
circulars (above referred to as Exhibits 8 and 9) was to make the election board cau- 
tious and to rather intimidate them; but the inspector stated that they did not cause 
him to swerve fiom his official duty in enforcing the law in regard to the qualifications 
of voters, and the court can not say that they had that effect. 

Finding No. 38: 

In regard to the effect that the circular Exhibit 8 and the circular marked Exhibit 9 
had upon the election officials in voting precinct No. 12 the court is unable to find as a 
fact the result of the distribution of said circulars, but states that J. A. Dunn, the 
inspector for that voting precinct, testified that, having received these, he was deterred 
from strenuously enforcing the law in regard to the test to be applied to negro voters for 
the purpose of determining their ability to read and write the Emglish language, or 
any section of the constitution, and especially as to national matters, as he was in awe 
of the Federal courts, and when a negro presented himself with the statement that he 
was able to read and write he ordinarily permitted him to vote. 

Then follows the conclusion of law. 

The court is of the opinion that the plaintiff is entitled to recover, and it is so ordered ; 
and counsel will prepare a formal journal entry, accordingly to which defendant 
excepts. 

Here is what the supreme court says so far as the election of the 
plaintiff in this case was concerned: 

3. Was the plaintiff elected under the facts found? The burden in the trial court 
was upon the plaintiff. Rampendahl v. Crump, 24 Okla. 873, 105 Pac. 201. Under 
the face of the returns, as found by the court, plaintiff was elected. Under the court's 
findings was the prima facie case established by these returns destroyed to such extent 
as it was rendered incumbent to purge the boxes in order to prevail against the certifi- 
cate of election held by the defendant. It is admitted in the pleadings that the vote, 
as tabulated and shown by the records, is correct, except as to precincts 12 and 30. 
Under said admissions the plaintiff received in the uncontested precincts 362 votes to 
the defendant 346. In precinct 12 plaintiff received 90 votes and defendant 50, accord- 
ing to the face of the returns. The court found as to said precinct that 17 votes were 
cast by negroes, 13 of whom could read and write arid 4 could not. The finding neither 
discloses as to whether they or their ancestors had lived under an organized form of gov- 
ernment prior to January 1, 1866, and were entitled to vote thereunder, nor as to whether 
they or either of them on January 1, 1866, resided in a foreign country and have since 
then become naturalized citizens of the United States or were the descendants of such 
persons. But charge these four votes to the plaintiff as invalid. The court also found 
that one white man voted who was not a legal voter. Charge this also to the plaintiff. 
That makes only five illegal votes in said precinct, which, being charged to the 
plaintiff, reduces his majority in said precinct to 35. In precinct 30 plaintiff received 
31 and the defendant 12, according to the face of the returns. The court found that 25 
of these votes were cast by negroes, and of said number five could not read and write. 
No finding was made as to whether they or their ancestors, prior to January 1, 1866, 
lived under any organized form of government and were entitled to vote, nor as to 
whether they or either of them on January 1, 1866, resided in a foreign country, and 
since then have become naturalized citizens of the United States, or were descendants 
of such persons. But consider them as illegal and charge these five 'votes to plaintiff. 
That would reduce his majority to 14 in said precinct. Then add the majority of the 
plaintiff in said precincts 12 and 30 together, to wit, 35 and 14. That makes 49 
majority. Deduct from the 49 majority 16 votes, the majority on the returns in favor 
of the defendant as to the other precincts. Then the plaintiff was elected by 33 votes. 
This calculation is based on the theory that all the illegal votes were cast for the plain- 
tiff, and on the assumption that the verity of the returns from precincts 12 and 30 was 
destroyed. 

Now, notice what the court says : 

It is not contended that the election officers acted corruptly or dishonestly, but 
merely through intimidation illegal votes were received. This intimidation under 
the finding of facts was not traced to plaintiff or his agents. 

Now, I want to read section 2735, General Statutes of Oklahoma, 
1908. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 97 

Mr. Taylor. This is a statute ? 
Mr. Morgan. Yes. [Reading:] 

Any member of a precinct, county, or State election board who refuses to execute 
a correct and proper certificate of nomination or of election, or who issues or executes 
or aids or abets in issuing a false or fraudulent certificate, or who alters or changes 
any certificate in his possession or care, shall be deemed guilty of a misdemeanor, 
and upon conviction shall be fined not less than $25 nor more than $500 and impris- 
oned in the county jail not less than one nor more than three months. 

I am not a criminal lawyer — not much of a lawyer of any kind, 
although that is my profession— but here is what occurred, as shown 
in the records. I "have shown you by reading from the newspaper 
report of the district judge's opinion, the local decision, and I have 
shown 3'ou hi 3 findings. I have read those that were most unfavor- 
able to me, if there is anything unfavorable to me. I have shown 
you that the whole finding is from this Democratic court up to the 
Supreme Court, that the" throwing out of these 11 precincts was 
absolutely unjustifiable and that it was, as the judge finds in his 
decision, without any pretended legal cause. The whole case in 
the court did not reveal that they made any excuse why they threw 
these out. The only thing was to elect three Democratic officials 
in that county and' to take away 228 votes from the Republican 
candidate for Congress. 

Mr. Oglesby. Is it not your theory that they threw them out on 
the ground, after they went to Oklahoma City, that the permit ion 
to let these men vote who were not entitled to vote, under the influ- 
ence of this circular which intimidated them, tainted the vote in 
those election districts and therefore made it impossible to separate 
the good from the bad, and they threw them all out ? 

Mr. Morgan. I suppose so. I suppose they thought that if they 
had a suspicion that there were any illegal votes they could throw 
out the whole precinct. They certainly must have had some excuse 
for it, but there is no excuse given in the record. Mr. Hogan was 
put on the stand, but he refused to testify. His attorney advised 
him that as there was a case pending in the courts against him, or 
something of that kind, that he had a right to take his privilege 
and refuse to testify as to what he did and why he did it. 

Mr. Oglesby. Did they not present some argument to the court to 
justify their action in throwing out these precincts? 

Mr. Morgan. It seems not, from that decision. The court in his 
decision says without any pretended legal excuse. 

Mr. Oglesby. You have no information about that then, except 
what is in the record. 

Mr. Morgan. No. 

Mr. Oglesby. You were not present and did not hear the argu- 
ment ? 

Mr. Morgan. No. 

Now, then, as to the real situation in this case. They have come 
here, gentlemen of the committee, and have talked about what Mr. 
Boardman did and have gone back two or three degrees and shown 
that he was once connected with my campaign as my campaign mana- 
ger, my former campaign manager, which I admit, of course, and they 
think that is sufficient, in some way, that this committee will, through 
imagination, in that way connect me with what Mr. Boardman did or 

46996—14 7 



98 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 



what somebody else did. But I say that that would be unfair and be 
unjust; it would not, from any legal standpoint, certainly be justifi- 
able in any way, manner, or form, because there is not the slightest 
testimony in this record to show that I entered into a conspiracy with 
any person about this thing, that I had any knowledge about it or any 
connection with it. But, gentlemen, it seems to me that the contest- 
ant in this case knowing, as he must have known, that 11 precincts 
in Blaine County were thrown out without any legal excuse of any 
kind, as has been decided by the district judge of his own party and 
supreme court judges of his own party, robbing me of 228 votes, 
•endangering, perhaps, the issuance of my certificate of election, a 
crime those men committed as I conceive it under that statute, where 
they made a false return of the real vote as certified to them — and yet 
throughout all this case they have not said or even admitted that I 
was entitled to those 228 votes. If they Wanted to come here with 
absolutely clean hands it seems to me they ought to have admitted 
that there were 228 votes to which I was entitled that I did not get. 
It seems to me they ought to have conceded that I lost those 228 
votes by the wrongful act of those Democratic election officials. 
But they did not do that; they compelled me to introduce witnesses 
and to go to great expense to come here and present an argument to 
establish a fact that appears to me should have been conceded. 

I have here a tabulation of the votes in these various precincts of 
the second congressional district, where any evidence was introduced, 
and I would like the members of the committee to notice that table. 

Table No. 7. — Number of negroes who voted in the precincts in which there is any evi- 
dence in the record of negroes voting as shown by estimates of witnesses. Where two 
witnesses made estimates, the table shows the highest estimate. 



Township. 



Name of officer testifying. 



Page of 
record. 



_ Esti- 
mate. 



Vote. 



Carney. Morgan 



Oklahoma County: 

Dewey 

Luther 

Luther City 

Choctaw 

Crutcho 

Sixth precinct of ward 2, 
Oklahoma City. 

Ninth precinct of ward 2, 
Oklahoma City. 

Springer 

Deep Fork 

Blaine County: 

Flynn 

Wa tonga 

Oklahoma County: 

Greeley 

Oklahoma A 

Hartzel 

Blaine County, East Dixon 9 . . . 
Canadian County, El Reno "A" 
of ward 2. 



Davis, inspector 

Vorel, inspector 

Ray, inspector 

Kenyon, clerk , 

Redding, inspector. 
Sorrels, inspector . . . 

Lucas, inspector. . . , 

Baker, clerk 

Morris, clerk 

Howell, judge 

Temple, inspector . . 

Needham, inspector 
Baker, inspector. . . 

Jack, clerk 

Beals, judge 

Fortner, inspector . . 



74 
78-79 

110 
143 

53 
55 
59 
113 
214 



48 

120 

6 

7 

25 

90 



774 



909 



80 
152 
48 
57 
105 
109 

151 

129 
103 

22 



1,332 



Note.— If all these negro votes were thrown out and all the white votes counted, it would not overcome 
Morgan's proven plurality of 891 votes. 

Morgan's plurality in the above precincts is 423 votes. If the entire vote of these precincts were thrown 
out it would still leave Morgan a plurality in the district of 240, as shown by the face of the returns and 
as admitted by contestant, and a plurality of 468 votes, according to the proven plurality of 891 votes for 
Morgan. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 99 

I have undertaken to give to this committee some conception of 
what I think you can get out of the record. The table to which I 
have just referred shows the number of negroes who voted in the 
precincts. 

Now, gentlemen, there is nothing in this record to show how many- 
votes were cast for Mr. Carney in that district; there is nothing to 
show how many votes were cast for me in the precincts in Oklahoma 
County where this controversy arises. There is nothing in the record. 

How does the contestant expect you gentlemen to make an intelli- 
gent deduction from whatever contentions there might be in his 
case ? 

But I have collected from the record the evidence which shows 
* how certain witnesses were asked about how many negroes voted in 
the various precincts, and I have given the highest estimate that any 
witness gives in a certain precinct. Here is what the record shows: 
In all these precincts it shows that according to the estimates there 
were 774 negro votes cast in those precincts where there had been 
any evidence introduced; 774 negroes voted, so far as this record 
shows. 

Mr. Rogers. This table to which you have just referred is prac- 
tically a recapitulation of the two tables on pages 82 and 83 of your 
brief? 

Mr. Morgan. Yes. But I have arranged those figures in one table 
because I thought that would be a more easy way for the committee 
to understand it. Laying aside the technicalities, I simply collected 
it all in one table in order to show that so far as the record goes there 
are only 774 negro votes as shown in this record, and this committee 
can not go outside of the record. 

Now, if I were elected by 891 votes, if you would throw out every 
negro voter in those precincts and count the white votes I would 
still be elected. So far as my title to this seat in Congress is con- 
cerned, it does not depend on a single negro vote that has been shown 
by this record to have been voted. Throw them all out, school- 
teachers, preachers, and every man of the highest intelligence of that 
race; throw every one of them out, so far as there is any evidence in 
this record of negroes voting on that day shows, and my title is still 
clear. 

There is only one of two ways by which you can reach any intelli- 
gent conclusion on this .case. You have got to consider these pre- 
cincts in which there were alleged illegal votes, or else you must throw 
out the entire precinct. One method or the other must be used by 
you in order to reach an intelligent conclusion. 

Now, then, here is the Blaine County case, involving the same kind 
of evidence. What did the court do there ? What did the Democratic 
court do ? In a way it found there were two or three negro votes 
voted in those two precincts that could not read and write and were 
not entitled to vote. That is, that the precinct election officials had 
erred. But taking those off, the Republican was still elected as 
county commissioner. 

I claim, Mr. Chairman, that if the contestant in this case had shown 
proper diligence he would have gone into those 17 precincts and 
determined absolutely and accurately how many illiterate colored 
votes were voted. What was to hinder him ? 



100 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

That is a well-settled community. The precincts are small; they 
have their political organizations; those election officers are men 
who live there; the negroes are known; they have the names of the 
voters. Why was it not capable of determination, and why could 
not the contestant have come here to this committee with facts that 
will absolutely prove what they claim, without any great expense ? 

But they did not do it, and I say it to you that no committee can 
take this record and determine anything about how many votes 
were cast there or anything of that kind. You can not do it, gentle- 
men, and it is not fair. You have to take one method or the other; 
either throw out the illegal votes or the entire precinct. 

As I have shown, if as the counsel for contestant says, you can not 
separate the good from the bad, the ignorant from the illiterate, 
which I think you can - I do not think that, but even if you throw 
out every negro vote that was cast in these precincts, and give me 
what I am entitled to in Blaine County,, I was still elected by 240. 

But suppose you take the other side of it. Suppose you do as Mr. 
Giddings says; suppose you throw out all these precincts where any 
evidence was introduced of any negroes voting there; throw them all 
out, throw out the black man and throw out the white man, and yet 
I am still elected by 468 votes. 

Throw out those 17 precincts, and, if you will, disfranchise those 
men who voted honestly and were entitled to vote, because, perchance, 
two or three men did vote illegally; disfranchise those people and 
throw them all out, and still I would be have 450 plurality. 

Even if you throw out all those precincts, everything there, upon 
what theory, upon what possible theory that the contestant in this 
case can expect a favorable decision is more than I can understand. 

I say to you frankly that I do not believe the contestant in this case 
has behind him in prosecuting this case against me any great portion 
of the Democratic sentiment of the second congressional district of 
Oklahoma. I do not think he had behind him a majority of his own 
party in prosecuting this case. 

I will admit that I may be prejudiced, that I am personally deeply 
interested, but I maintain that so far as I am concerned, and so far 
as this case is concerned, this case is absolutley without merit. 

A man who becomes a candidate for an important office like a 
Representative in Congress, ought not to institute a contest to cloud 
the title of the man who holds the certificate 1 and embarrass him in 
his work for the people in the Congress of the United States ; he ought 
not to do it unless he can come with clean hands and with a case that 
has real merit in it, and unless he can come with a case that would 
appeal strongly to your sense of right and justice, he ought not to 
bring such a case here. 

I will confess that I have not been uneasy, that I have not felt 
there was any danger that I would lose my seat in the Sixty-third 
Congress as a Representative from the second district in Oklahoma, 
and yet it has been a weight on me. 

The mere fact that a contest is pending against a man is an em- 
barrassment to him in his work, and so, to some extent, it has been 
an embarrassment to me. 

So, as I stocd first before this committee, I will admit that I was 
somewhat affected. Why ? Because it seemed to me, in a way, that 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 101 

it was unjust, and that I ought not to have been placed in a position 
where I would have to stand up here and defend my title to this seat. 

I do not question Mr. Carney's motives. He and I have known 
each other for a gocd many years, have lived in the same town for 
three or four years, and we have never had a unkind word between us. 

During the campaign, I think it was generally conceded that the 
campaign was conducted without any animosity; so far as I know I 
never heard of him. saying anything improper about me, and I never 
said anything improper about him. We both made the campaign 
upon what we supposed to be cur own merits, and I hardly men- 
tioned his name in the campaign. I do not question his motives, 
and I have no ill will against him, but I do think he has been misled 
into embarrassing me in this case, and I do not believe he had back 
of him a majority of his own party, and I think his case is absolutely 
without merit. 

Now, gentlemen, I have said that I would be willing to leave my 
case and let it be tried before Democratic members of Congress from 
the State of Oklahoma. I have said that believing that these men 
are honest, that they are men who would not deprive me of my certifi- 
cate unless I could be rightfully and lawfully deprived of it. And I 
have said too that I had every confidence that the Democrats com- 
prising this Congress, and that the Democrats who would be put on 
this committee and who have been put on this committee, would not, 
under any circumstances, be guilty of rendering a partisan decision. 

So I have come before you, and although in politics I do not agree 
with the majority of the membership of this committee, I come to you 
with full confidence that you will do me justice, and feeling that you 
will do so, and hoping that you will promptly make a report that I am 
entitled to my seat, and I hope that, gentlemen, as far as I am con- 
cerned, that that will be done at the earliest date possible. 

I want my hands free; I want to go out from under this cloud, this 
shadow that has been brought upon the title to my seat, and I ask you 
to do that at the earliest date possible. 

Mr. Bowdle. This morning, under the impulse of your kind invi- 
tation, I asked you three or four questions that might seem to carry 
the implication that I was personally hostile to your claims in this 
case. I do not wish those questions to bear upon that implication. 

Mr. Morgan. I never thought anything about that; I did not take 
it in that way. 

I am very thankful to the committee for the time I have been given. 

The Chairman. Your counsel will begin his argument on Monday 
morning ? 

Mr. Michener. Mr. Chairman, in his brief Mr. Giddings has spoken 
at considerable length in regard to the fourteenth and fifteenth 
amendments. I do not wish to discuss that question, and I shall not 
say anything at all on the subject on Monday morning unless he says 
now that he expects to discuss the question in his closing argument. 

Mr. Giddings. I think I can answer that in this way, Mr. Chairman, 
and gentlemen: I must be home in Oklahoma by the 6th of May. I 
have some very important matters pending in the courts there, and 
unless I can get away from here some time on Monday I can not 
possibly get home by Wednesday. I was wondering if it will suit 
counsel on the other side if I were to speak, following Mr. Morgan, on 
Monday, and let Mr. Michener follow me? 



102 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Michener. That will be entirely satisfactory to me. 

Mr. Giddings. I am going to make this proposition to the commit- 
tee when it convenes on Monday morning: First to let counsel for the 
contestee digest in the record those points which counsel desire 
answered, and I will do my level best to answer them. I also suggest 
that the members of this committee who find in the record any ques- 
tion that any member may desire me to answer, that I will try to 
answer that. That will shorten the argument somewhat. If counsel 
for contestee has any questions he desires me to answer, if we can get 
at it in that way it will shorten this argument, and the same will apply 
to members of the committee, and I can perhaps get through in an 
hour. 

Mr. Oglesby. You mean if you can avoid interruptions you can 
get through sooner. 

Mr. Giddings. Yes; it would shorten the argument. 

Mr. Stafford. You desire to try to conclude by 12 o'clock noon? 

Mr. Giddings. I do not intend to consume as much time as that, if 
possible. Now, speaking of the proposition made by Mr. Michener, 
I do not intend in any manner to convey the meaning that I have 
waived the proposition you suggested, Mr. Michener, and I think I 
suggested the other day I did not waive that proposition; I do not 
intend to waive it. 

Mr. Michener. There is one other question I would like to put in 
the record at this time. 

I would like a citation to the Oklahoma statute, if there be one, 
which authorized the inspector of elections to make a return to the 
county election board. If I read the statutes right I think the pre- 
cinct returns are made by the official counters, and not by the 
inspectors. 

The Chairman. We will adjourn until 10 o'clock Monday morning. 

(Thereupon, at 12 o'clock noon the committee adjourned to meet 
on Monday, May 4, 1914, at 10 o'clock a. m.) 



Committee on Elections No. 2, 
House of Representatives, 

Monday, May 4, 1914. 
The committee this day met, Hon. James A. Hamill (chairman) 
presiding. 

The Chairman. The committee will hear Mr. Giddings this morn- 
ing. You may proceed, Mr. Giddings. 

ARGUMENT OF E. J. GIDDINGS, ESQ., COUNSEL FOE CONTEST- 
ANT — Continued. 

Mr. Giddings. If it please the committee, I am quite satisfied that 
the minds of the members of this committee are still open to the 
reception of arguments on both sides of this contest. 

In my opening statement before this committee I tried to be cour- 
teous to each questioner, and particularly courteous and considerate 
of the contestee and his official position. I do not want that which 
I am about to say to be considered, even remotely, as a personal 
reflection upon Mr. Morgan. I am going to argue this case as a 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 103 

lawyer and seek, to the limit of my ability, seriatim, to take up each 
and every point advanced by him so far as the limit of my time will 
allow. 

In closing this case for the contestant I want to state that no 
statement made in the opening of this argument as to what was the 
law of Oklahoma, and that no fact presented to this committee which 
is in this record, either directly or incidentally, is now sought to be 
withdrawn, but reaffirmation is given now of every statement made 
upon behalf of this contestant, and when you gentlemen get the 
argument in this case, those of you who have been unable through 
the stress of other important matters to attend all the meetings of 
this committee during the hearing of this case, I want to charge your 
memories here and now with this statement and this prophecy — that 
you will find that no statement that we have made as to the law of 
the State of Oklahoma, that no fact we have called your attention- to 
even remotely, has been contradicted by anything so far said upon 
behalf of this contestee. And I want to charge your memories, when 
this argument is concluded, that the same will not apply to the 
remarks of Mr. Morgan. 

Some matters have been suggested here by Mr. Morgan that are 
outside of this record, not for the purpose of seeking to influence the 
minds of the Democratic members of this committee or anybody 
else, but that this statement may not go unchallenged in this record 
as to the position of the Democrats of my State with regard to Mr. 
Morgan's district, the second congressional district of Oklahoma, and 
as to the position of the Democratic Members in Congress in regard 
to that, they themselves quite emphatically deny that you were 
correct, Mr. Morgan, in your statement of opinion as to the position 
of the Democracy of Oklahoma or the Democratic Members in Con- 
gress from the State of Oklahoma, and I say to you that from the 
Senators down and the Senators up of the Oklahoma Democratic 
delegation they have personally wished both to Judge Carney and to 
me godspeed in this contest. I do not want any statement to go 
home to my people to the effect that any statement of record here 
by Mr. Morgan went unchallenged that the Democratic Members in 
Congress orthe Democrats in the Oklahoma delegation were behind 
him even remotely in this contest. I call your attention to this fact, 
that Senator Owen personally told me he sincerely trusted that 
Judge Carney would prevail in this contest. I also call your atten- 
tion to the fact that the other Senator from Oklahoma has made the 
same statement, and that every Democratic Congressman from Okla- 
homa likewise has made the same statement, and that Mr. Morgan 
is therefore evidently mistaken, honestly mistaken, in his statement 
made before this committee in regard to that matter. 

Another suggestion made by this gentleman was — and I am getting 
at the last part of his argument first, in order to answer the most 
important statements he made early in my final presentation — that 
he would be willing to trust the decision of this contest to the mem- 
bers of the Oklahoma delegation. While these things are out of 
the record, and to a certain extent rather childish, I want this record 
written as it ought to be written. I wish to God this case could be 
submitted to the Democratic Members of Congress from Oklahoma, 
and if you want to, Mr. Morgan, we will make an agreement with you 
right now to that effect. That is out of the record, but I want those 



104 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

things in the minds of the members of this committee, and I want 
the minds of the members of this committee disabused thereon, and 
I want to say that the argument or statement is only made, and 
never would have been made except for the statement of Mr. Morgan 
in his closing of this contest for the contestee before this committee. 

I said that no statement of law made at the outset of this case do 
I now desire to withdraw. In reference to the matter of registration 
which some may think an insurmountable barrier to the problems 
of this contest, upon the part of the consestant, I here reiterate that 
at the general election in 1912, it was the duty, regardless of registra- 
tration, of the precinct election inspector to qualify at the polls. I 
made that statement in my opening, not citing authorities nor stat- 
utes in regard thereto, relying upon the statement with full knowl- 
edge that it was the law of Oklahoma, and passing it up to Mr. Morgan 
to say what he would either in denial or affirmation of it before this 
committee. 

Now, then, I come to this decision, and then I will show you by 
the laws of Oklahoma, passed subsequent to that decision, that that 
was the law within the jurisdiction of Oklahoma at the time of the 
holding of the general election of 1912. 

This Show case, cited by Mr. Morgan, is under this state of facts: 
Previous to the adoption of the amendment in question, known as 
the grandfather clause, a negro registered in October preceding the 
election, if I remember correctly — at least preceding the adoption 
of the amendment; that he sought to vote subsequent to the adop- 
tion of the amendment; that that which he submitted to the elec- 
tion inspector was an affidavit — these facts are in the record, set out 
copiously in the brief of the contestee, Mr. Stafford. 

I here charge your memory that I would show you that case, and set 
out in full in the record that upon an affidavit that he was competent 
to read and write a section of the Constitution, and that a specimen 
of his handwriting was upon the affidavit; that he requested, under 
his certificate of election, the right to vote, and the election inspector 
required him to make a test then and there in the presence of the 
election inspector. 

He refused to do this; he complained to the county attorney about 
it, and that information was filed charging the election inspector 
with a violation of the laws of the State. 

Two questions were presented for the determination of the court 
in that case. The first is of no moment in this case; it only went to 
the question as to whether or not a writ of habeas corpus would lie 
where one was charged with a crime in any degree or whether the 
remedy of one so charged was not by an appeal in the event of a con- 
viction, the court holding that where the information charged no 
offense, and where none could be charged, by an amendment of the 
information, that the prisoner was entitled to his release under a writ 
of habeas corpus. 

The second question was as to the effect of the registration certifi- 
cate; and as to whether or not under an affidavit, and under those 
things alone, the inspector could refuse the negro the right to vote 
at that election. 

The court held, releasing the petitioner, that the inspector then had 
the right to qualify him at the polls, but specifically called attention 
to the fact of the registration antedating the adoption of the grand- 
father law. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 105 

In that decision the court held that the certificate of registration 
then entitled the registered voter to vote, in the absence of fraud, but 
they qualified that by saying that if the election inspector, in fraud, 
or under the pretense of depriving some one unlawfully of the right 
"to vote, should require an additional test, he would be guilty of a 
crime. Even the affirmation of that proposition that under the 
pretense of depriving an elector of the right to vote, that in doing 
that the inspector would be guilty of a crime, is contained in the 
negative, that in the event he did not do it under pretense of unlaw- 
fully depriving the elector of a right to vote, he had not committed 
a crime. 

But so cloudy was that decision and so susceptible of different con- 
structions, that the legislature, having it in mind when that body 
convened in 1911, a year after the rendition of that decision, passed 
a law which required each and every inspector a challenger at the 
polls, to qualify and compel an elector, when challenged, to read and 
writ? any section of the constitution of the State. 

Mr. Stafford. Will you kindly give us that citation ? 

Mr. Giddings. I am going to do so. 

Now, then, evidently Mr. Morgan was misled by somebody when 
he stood before this committee and told the members of it, not once, 
but many times, that no power was vested in the election inspector 
to require the educational qualification test in the election held in 
November, 1912; and through the medium of being misled himself, 
he evidently misled the members of this committee. 

I wanted to take that question up first, because I know that the 
members of this committee who are lawyers evidently were thinking 
that there was something wrong with the situation where the courts 
of the State had held that, prima facie, a certificate of registration 
gave the negro a right to vote. I will, in a few moments, quote to 
you from the Session Laws of the State of Oklahoma. 

I do not think that Mr. Morgan intentionally intended to mislead 
the members of this committee, but if he is wrong on this proposi- 
tion — and I call it to your attention at the outset — he may be wrong 
on others with regard to the evidence and the law in this case. 

Now, listen to this a moment, and let me show you who is right 
in regard to the laws of Oklahoma. Let me suggest to you further 
that the man who presents a case to this committee ought to investi- 
gate the laws of his State before he tells the committee that certain 
provisions are the laws of the State. 

Section 4 of the Session Laws of Oklahoma of 1911, a year after 
the rendition of the decision in the Show case, a year after Judge 
Richardson decided that case and rendered that opinion, a year 
after the general election of 1910, says: 

Sec. 4. Any elector shall, upon presenting himself to vote, announce to the clerk 
of the election, town, or, if a city of the first class, give his street number. Any 
election inspector or challenger may challenge the right of any person to vote, and if 
a person be challenged on the ground that he is not able to read and write any section 
of the Constitution, and was not a legal voter under any other form of government on 
January 1, 1866, or one whose ancestor was not a legal voter on said date, before being 
permitted to make the affidavit required by law, he shall be required to read and write 
any section of the Constitution. 

No person challenged shall be permitted to vote unless he make affidavit in writing 
that he is a qualified legal voter of the precinct, also his name, residence, occupation, 
place or places of residence during the six months prior to the election, with the date 
of any removal within that time and the names of two persons who have personal knowl- 



106 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

edge of his residence in that precinct 30 days, in the county six months, and in the 
State one year. He shall then be allowed to vote, unless the election inspector or 
challenger make affidavit in writing that he knows or is informed and verily believes 
that the person offering to vote is not a legal voter of the precinct, and the person offer- 
ing to vote shall not be thereafter allowed to vote unless one qualified elector of the 
precinct who has been a freeholder or householder in the precinct for at least one year 
next preceding such election shall make affidavit in writing that he has personal 
knowledge of such person offering to vote being a legal voter in the precinct. 

That is the law of 1911, and yet Mr. Morgan stood before this 
committee and told the members of this committee, not once, but 
many times, that the certificate of registration in cities of the first 
class gave the one having the certificate the right to vote, in the 
absence of fraud. 

Listen to the reading of this law. It does not merely refer to 
country precincts; it does not exclude city precincts; it does not 
exclude cities of the first class; the words used are "any election 
inspector/' meaning all election inspectors at the polls on election 
day. In view of that decision he read to this committee, is it not fair 
to assume that Mr. Boardman, when he wrote that letter, knew that 
that was the law of the State, because in the letter itself, at the close 
of it, he states that under the then existing laws of the State of Okla- 
homa the precinct election officials are quasi-judicial officers. Cer- 
tainly that must dispose of one of the main contentions of Mr. 
Morgan. 

I come next to the question of this Boardman letter, and with all 
due deference to you, Mr. Morgan, I say that your position in this 
case, under your pleadings and under your testimony, is neither envi- 
able nor satisfactory. 

I hold in my hand the printed record in this case, containing as it 
does the answer Mr. Morgan solemnly filed as telling the truth in 
January, 1913, about one month and a half after the election. Let 
us see now what he says in this answer, and let us see whether or not 
the inconsistent attitudes and the wobbly positions he takes before 
this committee entitle him to the righteous indignation he showed 
before the committee. 

On page 12 of the record Mr. Morgan denies that he wrote the 
letter; he denies that he read it and says he is informed and believes 
that he did not write it, and yet he stands before this committee and 
says that he knew nothing about the letter, or that Boardman had 
written it, until the October of the year succeeding. This is what 
he says on page 12 of the record: 

That practically all of the second congressional district is within that part of the 
State of Oklahoma which comprises the said western judicial district of the State of 
Oklahoma, but this contestee is informed and believes that no letter or opinion of the 
sort, kind, or character as set forth in said sixth paragraph of said notice of contest of 
said contestant, a copy of said letter or opinion being attached to contestant's notice 
of contest and marked "Exhibit B," was written by the said Boardman, and this 
contestee therefore denies that said Boardman wrote a letter or opinion of the sort, 
kind, or character as set forth in said notice of contest. 

That is, that previous to January 13, 1913, he, Morgan, had been 
informed that Boardman had not written any such letter. From 
whom can he get the information? Boardman. What shall be the 
source of his information ? Surely the source from which it originated 
in the first instance. 

And then he stands before this committee and tells the members 
of this committee that in October, 1913, he, returning to Congress 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 107 

for the session of 1912, and not returning to Oklahoma until 1913 
that he had no knowledge that Boardman had written a letter, and 
no information upon the subject. 

Mr. Rogers. Mr. Giddings, the phrase following those phrases 
which you have read to us reads: 

And if the said Boardman did so write a letter of said sort this contestee denies that 
it was written with the consent, knowledge, approbation, or connivance of this 
contestee. 

Does it not strike you that that denial is in the form customary in 
legal pleading ? 

Mr. Giddings. No, sir; because here preceding it is the positive 
averment that he was informed that Boardman had not written the 
letter, and my contention is that that does not conform to his state- 
ment made before this committee that he had no conversation with 
Boardman until the preceding October, and knew nothing about his 
having written the letter or into what channels it had gotten until 
that time. 

Now, let us take some more positions in this case and see whether 
or not they justify finding that there is such consistency and fairness 
upon the part of this contestee as to put him in the most favorable 
light before this committee in regard to this contest. 

He stood before this committee and virtually admitted the legality 
of the grandfather clause. He says that from the stump he only 
advised qualified voters to vote; that he never questioned anywhere 
or at any time the validity of that amendment on the stump; that 
all he advised the voters of Oklahoma to do was that those who were 
qualified should vote upon the question. 

And yet in his answer he emphatically denies the validity of the 
grandfather clause, and emphatically denies that it had any applica- 
tion to the vote on Members of Congress within the State of Oklahoma. 

Now, mark you, he was telling, according to his own statement, the 
citizens of Oklahoma, and advising them that qualified voters should 
vote. What was his opinion at the time that he was iraking these 
statements to the citizenship of the State as to whom, within the 
State of Oklahoma and within his congressional district, were quali- 
fied electors? In the fifth paragraph of his answer, on page 12 of 
the record, he says — 

This contestee denies that said amendment is valid under the Constitution of the 
United States or that its provisions are applicable in an election for Representative 
in the Congress of the United States. 

That was his opinion before he appeared before this committee ; it 
was his opinion when he was upon the stump in Oklahoma that it was 
an invalid law; and I shall not embarrass him by asking him how he 
voted upon that law when it was up for ratification or rejection by the 
people at the polls. 

Another inconsistency — and I am showing you these things before 
I get into other matters — is that he stood before this committee con- 
tending that where an elector had a certificate of registration in a 
city of the first class that in the absence of fraud in the registration 
he was entitled to vote, and then he sets up in his answer that the 
precinct election inspectors within the several precincts in the second 
congressional district at the general election of 1912 lawfnlty enforced 
the grandfather clause. 



108 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

I now come to the question as to whether it is possible under this 
record and under the record in the Davis case, and under the general 
information that people must have upon this subject, as to whether 
or not Mr. Morgan knew anything about it, or as to whether or not 
the members of his congressional committee knew anything about it, 
or as to whether or not his son knew anything about it, and I want to 
show you the infamy practiced in that congressional district and show 
you the means used to intimidate and oppress those whose duty it 
was to enforce the law. I want to specifically call your attention to 
this most significant fact in this record, that to the Democratic elec- 
tion inspectors alone, to the Democratic clerks alone in that congres- 
sional district was this warning circular sent or was this letter of Mr. 
Boardman sent, and that to the Republican officials, so far as this 
record discloses, it never was sent. And I want to show you that 
somebody well acquainted with the political conditions in Oklahoma, 
somebody who knew all about these matters, was responsible for the 
issuance of these things and the mailing of them simply and only to 
the Democrats in the district, who happened at that time, unfortu- 
nately for them, to be members of precinct election boards. 

It is a singular fact that if this were not done by some Republican 
committee under the guidance of some Republican hand and was 
intended for general distribution among the election officers of all 
political faiths, that it found its way by some peculiar serpentine 
process only into the hands of the Democratic election officials of the 
district. 

And this also is significant in this record, that Mr. Morgan makes 
the statement that when he talked to Mr. Boardman, this high-minded 
man of his who would write such things and send them out, Board- 
man told him he was at Lawton at that time, that his office called 
him up by telephone and told him that they wanted to get out this 
letter, that there was a request for it. What did they want it for; as 
an ornament to decorate the walls of Wagoner? What did they 
want it for ; merely as a keepsake and a memento ? What was the 
purpose of it unless it was to intimidate somebody or promote the 
success of somebody through the medium of such intimidation ? 

So urgent was the matter that they called him on the telephone, 
the people in his office called him, and asked him about the advisa- 
bility of the signing of such a letter and the sending of it to a county 
attorney whose name appears as one of the attorneys of one of the 
contestees in these litigations. So they called him up. It was a 
matter of importance. It was a matter of so much importance that 
they used the long-distance telephone to get in communication with 
"our chief, " in order to do what ? Three or four days were elapsing 
then between the time of the election and the sending of that letter. 
It was necessary to have it before the election. Under this statement 
of Mr. Morgan the time was not sufficient to send the letter to Mr. 
Boardman through the mails and for him to sign it and send it back 
to the office of the United States district attorney at Oklahoma City. 
They did not have the time. They wanted it for use then. That is 
the statement of Mr. Morgan in this record and that is undeniably 
borne out by the facts. 

So they <ent it out. Did they send it out on the square ? Did they 
so act that by the sending of it there would be a free and equal elec- 
tion within that State ? No. They sent it out three days before the 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 109 

election so that those of opposite political faith had no opportunity 
to answer it or to know anything about it until it fell into the hands 
of precinct election officials either the day before or the day of the 
election. 

You call this fair tactics; you say that by the employment of such 
tactics a free and equal election has been held within that State? 
Did he know anything about it? If he did not, his agents must have 
known about it. The record is full of quotations from newspapers 
in Mr. McGuire's district, from Republican newspapers all over the 
State of Oklahoma, leading Republican organs of the State, several 
days before the election, notifying the election officials that that letter 
had been written, and notifying the election officials that if they dared 
enforce the law the penitentiary would be their portion, and notifying 
them that the word had come from Wickersham at the National 
Capital to prosecute all those who violated the Federal laws in the 
enforcement of the grandfather amendment of Oklahoma. 

Mr. Taylor. What did this man Wagoner have to do with obtain- 
ing the letter ? 

Mr. Giddings. According to the statement of Mr. Morgan, Mr.. 
Wagoner evidently must have been in the office of the United States 
attorney at that time. He was interested as a Republican in this 
contest all over the State. He got the letter and it was then pub- 
lished all over the district, as is admitted in these pleadings and in 
this record. That is what he had to do with it. 

The presumptive evidence is that he got the letter for use because 
it is shown that it was used. 

Somebody with authority sent out that warning circular, and I will 
show you in a moment from this record, and from every process of 
reasoning that can be developed, that perhaps it was not the Repub- 
lican congressional committee of the second congressional district, 
but it was the Republican State committee that issued this warning 
circular and got hold of this letter of Mr. Boardman and used it in 
the State; that by every process of reasoning that is demonstrated 
in this record. 

Now, then, did he know about it? Does he not read the papers? 
Does he now know of the arguments that were being made throughout 
the district on both sides by Gov. Cruce and by Senator Owen on 
the one side and by the Republican partisans on the other side ? And 
does he not know that previous to the election, just a day or so before, 
in the papers that could not get to the country precincts in time to 
have it controverted, this letter appeared? Let us read some of the 
newspaper clippings. Let me suggest this to you gentlemen, that 
you have a right to try this case upon circumstantial as well as direct 
testimony; that circumstantial evidence is just as reasonable and 
just as certain in a case of this nature as it would be in any civil or 
criminal case in any other tribunal of the country. 

The Chairman. Suppose this circular did not change the result of 
the election ? 

Mr. Giddings. I am coining to that. 

The Chairman. Am I anticipating you ? 

Mr. Giddings. Yes, sir. 

The Chairman. I beg your pardon; go ahead. 

Mr. Giddings. I will show you that it did. Now, listen to this. 
I demand at the hands of this committee that it say whether or not, 



110 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

in view of the circumstances in this case, this was a free and equal 
election, as contemplated by the Constitution of the United States, 
the laws of the country, and the laws of the State of Oklahoma. Here 
is what appeared in the Guthrie Daily Star. Guthrie was formerly 
the capital of the State. 

The Chairman. Pardon me a moment. I want you to give me as 
full an argument as you can on this proposition. Suppose the mem- 
bers of the committee would get into this state of mind. I do not 
know whether they will or not. But suppose they get into this state 
of belief, that the circular did change the result of the election, and 
that if the circular had not been issued Carney would have been 
elected. 

Now, then, we would be up against the consideration of this 
question. Mr. Morgan says he knows nothing at all about the cir- 
cular having been sent out. Now, is the fact that he got the benefit 
of something that he did not know anything about, and that that 
something was a wrong thing, was that chargeable against him ? 

Mr. Giddings. Yes, sir; I am going to argue that question, because 
it goes to the very vitals of this case. I say we can fasten by cir- 
cumstances this knowledge upon this man. Here is his bosom 
friend, his ex-campaign manager, as is admitted in the record, sending 
out this letter. Here is the man he got 

The Chairman (interposing). You are now arguing to prove that 
he did know, from the circumstances ? 

Mr. Giddings. That he must have known something about it, if 
he was doing as he says he was doing at that time, campaigning 
vigorously over that district, making, as he says, from two to five 
speeches a day. 

He says there was no negro question in Oklahoma, and is not now. 
I wish to God there was not. 

Here is a clipping from the Guthrie Daily Star of October 29, 
which appears in the record of the McGuire case, at page 205: 

MUST LET NEGROES VOTE OR GO TO JAIL, SAYS THE STATE SUPREME COURT — GOV. 
CRUSE AND OTHER PROMINENT DEMOCRATS HAVE THROWN UP THEIR HANDS IN 
HORROR AT DECISION. 

Despite the rantings and nonsensical babblings of Gov. Lee Cruse and Senator 
Robert L. Owen about the grandfather clause, the supreme court of this State — 
Democratic judges — the Democrats' supreme court, has handed down an opinion 
which makes it incumbent upon every election official in the State to allow the 
negro to vote without undue application of the reading and writing test. All Demo- 
crats had hoped that this decision would not be given, because without it the election 
officers in many places were ready to practice all kinds of methods to keep the negroes 
from voting. The decision is a real bomb in the camp of Democracy, and shows 
what even a Democratic court thinks of the law itself. The Federal courts have 
already held it unconstitutional, and the Attorney General of the United States 
has promised vigorous prosecution wherever an attempt is made to unlawfully deprive 
a negro of his vote. 

Gov. Cruse and other prominent Democrats have thrown up their hands in horror 
at this decision of the court. This, however, is not the law, and then rantings will 
not keep election officers out of the penitentiary if they do not follow the law. 

This exposes the "grandfather" election crooks to prosecution in both the State 
and Federal courts. Both Gov. Cruse and Senator Owen are making fiery campaign 
speeches for the radical enforcement of the "grandfather" law. Concerning the 
Wagoner County case, the court said : 

"When any person (meaning any person amenable to the 'grandfather' law) pre- 
sented himself as a qualified voter and asked the privilege of voting, the precinct 
officers were authorized to require such person to read and write of the Constitution. 



CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. Ill 

But when such proposed voter read intelligent and wrote legibly the section of the. 
Constitution designated by the election officers he demonstrated his qualifications 
to vote, and acts on the part of the election officers requiring him to write at great 
length many provisions of the Constitution, or detaining him for any great length of 
time under a pretense of examination and thereby delay other persons from entering 
the polls, was without authority of law." 

The case arose over the refusal of election officers at Vanns Lake, in Wagoner 
County, to allow negroes to vote. The court's opinion recites some interesting facts 
concerning the Democratic election methods in Oklahoma, saying: 

"A large number of persons, variously estimated from 250 to 400, mostly negroes, 
congregated at the polling place. Some of them offered to qualify as voters, but were 
refused permission to do so because the election officers were engaged at the time in 
examining other persons as to their qualifications. 

"One person, who had been a teacher in the public schools and had taught thirty-odd 
years, was admitted to the booth and questioned concerning his qualifications to vote, 
and upon being required to read and write a section of the Constitution he read seven 
or eight pages of the Constitution, and then was given a tablet and pencil to write. One 
of the officers read slowly to him from the Constitution, and the proposed voter wrote 
as he was dictated to until he had written some 21 pages. After he had been retained in 
the booth for 2 hours and 15 minutes, he was held by the election officers not qualified, 
and was denied the privilege of voting." 

Other persons no less well qualified were subjected to the same treatment. "Prac- 
tically the entire day at this precinct," continues the court in its opinion, "was con- 
sumed by the election officers in the examination of eight persons . ' ' Other persons got 
no opportunity to vote. The same disregard of law was shown at another precinct, the 
court saying: 

"At this precinct there were 40 persons present for the purpose to qualify themselves 
to vote. * * * Of this number, 37 could read and write; but under the rule 
adopted by the board, requiring such qualified voters to memorize immediately any 
section of the Constitution read to them and write the same, none could qualify, and all 
were denied the privilege of voting. 

"The conduct of the election officers at these precincts can find no justification in the 
law, and their protests that they acted in good faith are refuted by their conduct." 

These records will all be considered together, I take it; these things 
which are matters of record may be taken into consideration in both 
cases, I take it. 

Mr. Stafford. I would like to interrupt you a moment right there. 
Do I understand we are to try this case on the record of another case ? 

The Chairman. I do not understand that at all. 

Mr. Giddings. I think all these records are here in evidence. 

The Chairman. Of course, we have the different legal decisions. 

Mr. Giddings. I am showing you now; I am not going out of the 
record. 

The Chairman. Don't you care what happens to Mr. Davis, if you 
get out all right. 

Mr. Giddings. It is a question of right or wrong in this case; it is a 
question of using these circumstances to show whether or not Mr. 
Morgan possibly could not have known that there was some question 
as to what the United States attorney's office would do with men who 
did enforce the law. 

The Chairman. Pardon me for interrupting you again, Mr. Gid- 
dings. Of course, we will not consider anything except what is in 
the record, save those things which are of such general notoriety that 
we could take notice of them under the rule of judicial notice. 

Mr. Giddings. I am saying that the records of these cases are 
in the records of the committee. They are matters of public record, 
and the members of the committee, like judges of the courts, take 
judicial notice of the records of public tribunals. 

Mr. Russell. Where is the city of Guthrie ? 

Mr. Giddings. It is immediately north of us. 



112 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

- Mr. Russell. Is it in Mr. Morgan's district ? 

Mr. Giddings. No, sir. I am showing you what the newspapers 
of that district said about what the, United States attorney would do. 
I have already read }^ou what the Guthrie Star said on the morning of 
October 29, 1912, 

Now, then, on the morning of November 3, 1912, the morning pre- 
ceding • 1 'ction day, in the leading Republican organ of the State, 
the Guthrie Star, appears this statement, which I am going to read to 
you; and ev rybody knows that during campaign timrs every par- 
tisan paper is sent to the partisan headquarters for filing, to show 
what is b^ing done in that particular precinct. This is what the 
Guthrie Star said on the day before election: 

Cruse Warns Election Judges. 

Oklahoma City, Okla., November 2. 

In addition to the above warning from the United States attorney's office concern- 
ing the grandfather clause, Gov. Cruse has issued the following statement, including 
also his speech at Arnett and other places: 

' ' I believe in the enforcement of the grandfather clause, but I believe in a sensible 
enforcement. The negro in this State who can read and write has just as good a right 
to vote as you or I, and where the judges of election know that a negro is a qualified 
voter there is no more reason for applying the test than there is for making me swear 
that I am 21 years old." 

WARNING PROM KANE ALSO. 

Associate Justice M.J. Kane, of the State supreme court, in reviewing the evidence 
taken in an election case recently appealed from Wagoner County, where so much 
time was taken up in applying the test to a few negroes that a large number of voters 
were excluded, says: 

"The conduct of the election officers in these precincts can find no justification in 
the laws, and their protests that they acted in good faith is refuted by their conduct." 

The above warning simply means that the State officials higher up intend to shift 
all the blame and the penalty of the enforcement of the grandfather clause on the pre- 
cinct election inspector, judges, and the clerks, just as they did in the Beall and Quinn 
convictions in the Federal court at Enid. 

Will Prosecute all Violation. 

Guthrie, Okla., November 2. 

Attorney Wickersham, of President Taft's Cabinet, in a letter of instructions to 
United States Attorney Gregg, of the eastern Oklahoma district, says that all Federal 
election-law violations will be prosecuted. The letter of Wickersham was written in 
reply to one forwarded to him through United States Senator Gore from Judge Tow 
Owen, of Muskogee, in which Owen alleged that bloodshed and riot might follow at- 
tempt to make arrests on election day, and an opinion was sought from the Attorney 
General's Office. 

In Wickersham' s letter he suggests to Mr. Gregg that it might be advisable to have 
representatives of his department or of the Department of Justice, which includes the 
United States marshal's office, at the negro centers throughout Oklahoma, with a view 
of learning the treatment of negroes by election officers, and thus be prepared to make 
arrests immediately following election day and to commence prosecution. 

A copy of the letter sent to Gregg has been sent to the United States attorney's office 
at Guthrie also. 

Then again, under date of November 4 , 1912, there appeared also 
in the Guthrie Star a dispatch headed "Must not enforce grandfather 
law," dated Chandler, Okla., November 4, and appearing on 208 of 
the record in the Davis ca e. 

Way back in July, 1912, several months before election, in the lead- 
ing Republican papers of the State, which it is presumed a Republican 
candidate for Congress will read, there appeared statements of the 



CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 113 

United States attorney, Mr. Boardman, appointed partly through 
the good graces of Mr. Morgan to that office, saying that he would 
prosecute every election official who dared enforce the State law, and 
yet Mr. Morgan says he did not know about it. 

Now, then, suppose he did not know about it. Suppose I can show 
you from this record that his agents knew about it. Under this deci- 
sion in the Weilman case he has been charged with it. Let me suggest 
to you a legal proposition that laymen will understand as well as law- 
yers. If a man, without my knowledge or consent, acts as my agent 
and consummates a tiansaction for me, and if I accept the fruits of 
his agency and ratify the contract he has made for me I am estopped 
from denying that he acted in my behalf. 

Did he ratify the acts ? He took the certificate of election under 
such circumstances, did he not? 

The Chairman. That is very true, as a principle of contract law. 
But I want to ask you this : Suppose I am running in my district, and 
one of my agents was a man of no sense, and he goes out on the plat- 
form and says that my opponent is a thief, or libels him in some way, 
and on account of that the people turn against him and elect me. 
Am I responsible, in an election case, for the acts of that agont? 
That is begging the whole question to say that he is his agent and 
that he is therefore responsible. That is the very thing we want to 
find out. 

Mr. Giddings. That is not the rule here, for this reason, that this 
intimidation finds its way into every precinct. It finds its way into 
the different precincts of the State, where those who are selected, 
presumably on account of- their discretion and their judgment and 
their integrity, are presumed lawfully and legally to preside at an elec- 
tion and not permit illegal votes to offset the effect of legal votes, 
because such conduct mars the very sanctity of the election and de- 
stroys the integrity of the ballot and leads to interminable confusion. 
The real test is under the authority cited by even Mr. Morgan in 
his brief, where intimidation is practiced so generally and among so 
many that it is impossible to tell what the result would have been 
without it and that the election is void. In other words, that im- 
possibility is the test, and that is what I am arguing here, that is what 
I am trying to impress upon the members of this committee, that 
where you let down the bars — and I will show you that the seeming 
inconsistency in the testimony of these witnesses is not so much as 
you think it is- — where you let down the bars and let in all the legal 
and illegal votes, by such a system it is utterly impossible to tell what 
the result would have been in a contest without that condition, and 
that if it be impossible under that state of facts to show what the 
result would have been the election is void to this extent, that it 
throws the burden upon the one who benefits by such transactions 
and such damnable practices to show that it did not change the result, 
that without that intimidation he still is elected. 

Now, then, I cited the other day a case in which the Federal super- 
visors in Mississippi were intimidated. You could not tell how the 
effect had been effected by that; you could not tell what the result 
of the election would have been without that intimidation, and yet 
the Congress of the United States, acting through its Committee on 
Elections, held that where the intimidation was shown it destroyed 

46996—14 8 



114 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

the sanctity of the election; it had invaded the ballot box, the chief 
repository of human liberty in this country, and therefore it was void. 
. It was a mandate of a Republican Congress back in reconstruction 
times, almost, and if it was good for them then it is good for them now. 
It is the same proposition. 

Let us go a step further. Did this circular and this letter go only 
to Oklahoma County ? Did this circular and letter go only to Blaine 
County; did they go to the only other county they claim in the 
record, Canadian County? No. Let me read you a statement from 
my brief, a statement that is unchallenged. It is on page 27. I 
am going to read you an Oklahoma case which carries out my con- 
tention. But I say on page 27 of my brief: 

There is no dispute, in the pleadings or evidence, but what this letter and this cir- 
cular were scattered broadcast throughout the second congressional district. 

They do not deny that in the record or in the pleadings. It is 
admitted over and over. We have, according to the Census reports 
introduced in evidence through the medium of Mr. Morgan, the con- 
testee, that within that district at that time there were over 4,000 
negro voters. Now, the circular and letter went to each one of them 
who was a Democrat. 

I want to show you a significant thing in the testimony of Mr. 
Morgan, always remembering that that which I say is not intended as a 
personal reflection; I call attention to this significant fact, that the 
questions propounded and his answers are guarded, and limited, 
simply and solely to his congressional committee, to his son, to his 
acting chairman, his secretary ; but there is not a denial here, and it is 
the truth that such is the fact, that the Republican State committee 
of the State did not issue that circular and send it broadcast through- 
out the negro precincts of Oklahoma, and it is a reasonable inference 
from the testimony here that that is true. 

Now, Mr. Chairman, you will find, and I do not intend to go over 
this record again, that there is not so much inconsistency in what was 
being said in the testimony of these witnesses, when you begin to 
consider it in the light of these facts and circumstances in the case. 

I want to call your attention to this fact again, that in view of the 
fact that it is admitted that this warning circular went to every 
Democratic election official in the second congressional district, and 
in view of Mr. Morgan's own evidence that there were 4,000 and odd 
negro voters in the district at that time, what reasonably would be the 
effect of the finding in the mails, and the reading by an election offi- 
cial of a precinct of that circular ? What is its effect in law ? What is 
the effect of threatening a man, telling him to "talk it over with his 
wife," and remember that he will go to the penitentiary if he enforces 
the State law, which he has taken an oath to enforce. 

A writes JB a letter and says, "You stole my horse on October 1, B; 
unless you pay me $50 within 10 days, I will have you arrested." 

That is ultimately the proposition of law. What effect did it have ? 
Can a man use his reason when he begins to look at things of this na- 
ture ? What effect did it have ? 

Take that in the light of the testimony in one after the other of 
these precincts, that they were afraid to enforce that law. And 
then Mr. Morgan very ingeniously takes the testimony of precinct 
election officials, mind you, to whom this letter was not sent, and by 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 115 

their testimony proves that they enforced the law within that juris- 
diction. 

You will note that some political organization, it could not have 
been the Democratic political organization, evidently knowing 
exactly the situation in the State, did not send this warning circular 
to precincts in which there were four, five, or six negroes, but sim- 
ply sent it into the congested negro centers. 

Notice the testimony of Mr. Ray and other witnesses as to the 
effect, and their statements that in their precincts where there were 
but six or seven negroes the witnesses who were election officials in 
those precincts had never received that letter, and that because they 
did not receive it, did not know about it, and had not been threat- 
ened through the medium of it, and wherever you find in the record 
a precinct election official who did receive that letter, almost without 
a single, solitary exception, you will find his affirmative statement 
that he was afraid to enforce it for the reason that its enforcement 
might mean Federal incarceration. 

The truth of the matter is, gentlemen of the committee, as I told 
you in the beginning, that you had so placed these respective pre- 
cinct election inspectors that if they went one way they violated the 
State law by the nonenforcement of the grandfather clause, and if 
they went the other way they violated a supposed Federal law in its 
enforcement. 

Now, you will find by this record that in the direct examination 
each one of these witnesses says that he failed to enforce it on receipt 
of this letter and circular through that fear. Would it not be liable 
when this letter and circular was sent to men of ordinary intelligence — 
not lawyers, but men of families in the country precincts, men of 
common every-day affairs — threatening them with Federal prosecu- 
tion, that fear would take possession of them and cause them to 
hesitate? And they did hesitate, and the best evidence that they 
hesitated is that though previously to this election you had hounded 
every election official in the State who tried to enforce this law, 
having indicted in the Federal courts over a hundred of them within 
the State, you could not find any evidence anywhere in every one of 
these districts to justify any further indictments and any further 
persecutions — not prosecutions. 

Again you will find lacking consistency in this testimony due to 
this proposition, and I must hurry on. That they did say, on cross- 
examination, that they applied some sort of a test; that they let 
many vote — that is undoubtedly in this record — and the statement 
by Mr. Morgan that the proof only shows 14 illegal votes is absurd 
and ridiculous on its face. So they confessed on cross-examination 
that they applied some sort of a test. That was not the test. The 
test was for the negro — can you read and write a section of the con- 
stitution of Oklahoma? If you can not, you can not vote, and the 
law commanded these election inspectors as an official duty to apply 
that test, regardless of primary, regardless of knowledge, and it 
would have been applied, gentlemen of the committee, if it had not 
been for the receipt of such a circular. 

Now, this Oklahoma case that the gentleman cited, as he contends, lays 
down the rule that the Republican candidate there had not anything 
to do with the circulation and receipt of that circular and that letter 



116 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

and that it had not been intrusted to his agents. The record merely 
shows in this case — and I will show you it is in harmony with other 
decisions of the Supreme Court — that there was no attempt made to 
fasten it on anybody. It was just introduced in evidence, this circular 
and this letter, and you have these election officers down there in 
Blaine County in this shape at this time. You men having indicted 
them in the Federal court immediately succeeding the election, you 
put a padlock on their lips so that they could not testify upon the 
stand in that or any other case, and even in this contest they could 
not testify because they were then within the shadow of Federal 
prosecution, and so their lips are sealed. That is the rule announced 
there. 

But I will call your attention to this prominent legal proposition, 
that the question was not raised there, and was not even intimated 
there, that one who accepted the benefits of such a transaction could 
not be allowed to complain. The only question is, Was there no 
knowledge on the part of or active participation in by the Republican 
candidate that was traced ? But that is not exactly the rule that 
has been followed by the committee, and that is not exactly what the 
court evidently intended to lay down as the general rule for guidance 
in election contests. But previously to that the}?- had laid down a 
more arbitrary rule and one in absolute harmony with the great 
trend of American authorities. I intended to refer to this case some 
time back, so I will call your attention to it now — a case preceding 
this case and in absolute harmony with it, for the obvious reason if 
it is not in harmony with it reference would have been made to it to 
the extent of overruling the preceding case. It is the case of Ramper- 
dahl v. Crump, 24 Oklahoma, 873, and in that case there was an 
election contest where a man was trying to take advantage of the 
frauds that either party perpetrated upon the electorate, and in that 
case the Supreme Court of Oklahoma said that the rule obtains in 
elections as in other affairs, that a man shall not benefit by his own 
wrong nor shall the wrong done by others permit him to reap the 
benefit thereof. Do you mean to tell me there was no wrong done on 
behalf of the contestee in this case in the sending out of this circular 
and this letter? 

And here is the other rule in the authorities of Mr. Morgan, and I 
desire to say that Judge Carney will have here a table when he closes 
this case from the same authentic source from which you received the 
general information as to the voters of other candidates for other 
offices, and I shall come to that, showing exactly how many negroes 
voted in each county, the number of illiterates who voted and what 
the result would have been by mathematical deduction if that 
illiterate vote had not been intermingled with the good vote. Let 
me suggest to you, gentlemen of the committee, that if these election 
officers told the truth, specifically, one after another, though with the 
seeming contradiction which, I think, has been explained, that they 
were afraid to enforce this law, and allowed this negro vote, and that 
it was done all over the precinct and clone by every precinct election 
officer, how are you possibly going to separate the bad, illegal vote 
from the good vote in the district and permit this contestee, upon 
whom the suspicion of intimidation rests, to show the difference in 
his favor regardless of that intimidation ? 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 117 

Each member of this committee when he became a Member of this 
House took an oath to support the Constitution and laws of this 
Nation, among which was a provision that all elections shall be free 
and equal. What does that mean — free and equal? Those who 
wrote that provision evidently had some purpose in view in writing 
not only the word "free" but the word "equal." All qualified voters 
shall be allowed to cast their ballots without fear or intimidation. 
That is what freedom means, according to my definition. What 
does "equal" mean? That they all be treated alike, and that 
illegal votes shall not destroy the integrity of legal votes. Was this 
an equal election? Did these two candidates appear before the 
people on terms of equality? 

Some of the members of our political faith were threatened with 
Federal prosecution if they did not violate the laws of their State. 
According to the contestee's own tables, and I think the record will 
show, as presented by Judge Carney, infinitely more negro voters 
voted in that election than 714. Now, then, Mr. Chairman, this 
contestee — and I suppose he has the right, in one sense, because 
committees make their own rules in regard to the reception of evi- 
dence or its rejection — introduced what purported to be some tables 
as to the vote and the percentage of illiteracy between members of 
his own race and that of the black race, and there is something 
peculiar about this vote, in that upon its face it would appear that 
within the State of Oklahoma there were more illiterate whites than 
blacks. The trouble is that the negro enumerator who took this 
census doubled up on us with all the halfbreeds and quarter breeds 
and everybody else and dumped them on the white side of the fence. 
But the position we have always taken in Oklahoma and elsewhere 
throughout the South is that one drop of negro blood makes a negro, 
and I think you will find that to have been the case here; that they 
dumped all these other mixed bloods on our side and put all the 
pure blood of the Ethiopian upon the other. It is not true that the 
percentage of illiteracy in the State of Oklahoma is merely among 
the whites, or that there are no more white illiterates in that race 
than in the colored race, and if the gentleman thinks that is true let 
him go back among -his people in the next campaign and raise that 
issue and see what answer the people will make to him in his district. 

In answer to a question by Mr. Oglesby, Mr. Morgan figured out 
that in the second congressional district of Oklahoma the percentage 
of illiterates among the blacks was only 12 per cent. That is not so. 
If you will add up the percentage of illiterates among the blacks in 
each negro county of the district and divide them up by the number 
of counties you will find that the percentage of black illiterates is 
34.4 in that district under his own figures, and no census enumera- 
tion. That is true. There can be no question about it. Whereas 
the percentage of white illiterates in that district is just a little over 
2 per cent — to be exact, 2 and -^ per cent, according to his own 
figures. Take it and figure it yourself. Take his own enumeration, 
and I say to you without any fear of contradiction that in the dis- 
trict the figures show the percentage of black illiterates is 34.4, and 
it is even more because the test applied to the enumeration is not 
such a test as is applied under the grandfather clause, because the 
test ordinarily obtained in the taking of the census is by viva voce, 
can you read and write? and if he says yes he is put down in the 



118 CONTESTED ELECTION CASE OF CARNEY VS. MOEGAN. 

literate column, and if he says no he is put down in the illiterate 
column. 

Mr. Morgan seems to take great pride in the fact, and evidently he 
is entitled to it if it is true, that he received more votes in that district 
than the other Republican candidates; that the balance of the ticket 
ran ahead of Judge Carney, and that, therefore, by some system of 
logic I do not understand, that that shows the grandfather law was 
enforced in that district. 

My answer to that is threefold: First, that these tables are not 
matters of record; that under the strict rules of evidence, if you 
adhere to them, they have no force and effect upon this committee, 
but if the bars are to be let down for their reception and they are to 
have full force and effect before this committee that we shall produce 
a table from the same authentic source showing not 740 negro voters 
in that district, but something like 2,800 or 2,900 that voted at that 
election, both literate and illiterate, and that table, in the closing 
argument of Judge Carney, will be presented to you, and it is just as 
admissible and is entitled to the same faith and credit as this table 
from the secretary of the State election board. 

My next answer to the proposition that having received less votes 
than the rest of the Democratic ticket — which is not true in all 
respects — and, therefore, the grandfather clause must have been 
enforced and the Democrats must have been induced to vote for Mr. 
Morgan does not show the enforcement of the grandfather clause any 
more than it shows its nonenforcement, for this reason : For if it shows 
its enforcement there would be something more than a majority to 
indicate it, and it does not show it for this obvious reason, that it 
can not possibly be contended if it were enforced that the vote in that 
district for these other Democratic nominees would not even have 
been larger than it was. And my third proposition is that this record 
discloses — and I say it without any reflection on Mr. Morgan — that 
under these tables he has presented the Republican State organization, 
knowing the State was hopelessly Democratic, knowing there was no 
possibility of carrying the Republican ticket, either for Congressman 
at large or for Senators, centered their fight, to save themselves, in the 
first and second congressional districts of the State where this large 
negro vote was, and that they so accomplished it by some species of 
legerdemain; that the vote for Mr. Morgan amounted to some 600 
more than the vote further up the ticket for other candidates on the 
same ticket, and thus it is that Senator Owen, coming first on the 
ticket, with his opponent in Oklahoma County and the same in Blaine 
County, under the record, receives 12,742 votes where Carney and 
Morgan receive 12,773, and they are way down at the bottom of the 
ticket, and showing also that Claude Weaver and his opponent, as the 
record discloses, living in Oklahoma City, received but 12,269 votes 
in Oklahoma City, Carney and Morgan receiving 12,773, showing that 
in the Carney-Morgan race there were 502 more votes cast in that 
county than in the race of Weaver and his opponent. There is some- 
thing wrong there, because it is a fact of general knowledge that when 
men get to scratching their tickets the general result is the man at the 
top of the ticket is often voted for and the men down at the bottom of 
the ticket are not voted for with the same degree of regularity. 

There is something else peculiar with this vote, for, taking his own 
census tables, this vote he has compiled shows that not only every 



CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 119 

white man within Oklahoma County, but every negro within the 
county, must have voted to bring the result to 12,773 within the 
limits of the county, that being even more than the census shows 
living within the county of voting age. The census shows that those 
of voting age, aggregating negroes and whites, is 12,305, of which at 
that time, under his own figures and under his own table, 3,068 were 
negroes. At the time this notice of contest was served it was imme- 
diately succeeding the election, when we were not able to obtain any 
authentic figures. It is the practice in all election contests to specify 
a given number as legal votes, relying upon the evidence to indicate 
the exact number, if it is possible to do so, of those that are illegal 
votes, and I have no doubt, when those figures are presented to you, 
they will show an infinitely larger vote of negro persuasion within 
that district than the district is legally entitled to. 

Mr. Rogers. I would like to ask you at this point, if it will not 
interrupt you, and I ask it for imformation solely: What does the 
record itself disclose as to the extent to which this circular was 
distributed throughout the election districts of the State? 

Mr. Giddings. It discloses by admissions in the pleading and in the 
record and by direct testimony that this circular went to every negro 
precinct in the State where there was any appreciable number of 
negro voters. 

Mr. Rogers. Can you, for Mr. Carney, give us the pages of the 
record where those figures are set forth? 

Mr. Giddings. Yes. 

Mr. Rogers. Did I understand you correctly, earlier in your argu- 
ment, to say that where negroes actually voted it always appeared 
those men had not received the warning circular ? 

Mr. Giddings. No, I think you misunderstood me. I said this: 
That it was a peculiar circumstance in this case that only the Demo- 
cratic members of these precinct election boards, under this evidence, 
received these warning circulars. The Republican members did not 
receive them, and these warning circulars were not sent into precincts 
where there were five or six or seven negro votes, but they went into 
those precincts where there was sufficient negro votes, if cast, to 
change the result in that precinct. That was the situation I wanted 
to present. In every precinct where there was 200 or 300 negro votes 
they sent the circular, but in these precincts, where the negro vote 
was limited to five or six or seven negro votes, they did not send it, 
indicating on its face that somebody, who was intimately acquainted 
with conditions in the State or some of the astute politicians, wanting 
them to vote, must have sent that circular out. 

Mr. Russell. Mr. Giddings, may I interrupt you to ask a question ? 

Mr. Giddings. Certainly. 

Mr. Russell. So as to understand what your point is on the ques- 
tion. You cited the fact that according to the papers filed in the 
proceeding the combined vote of Mr. Morgan and Mr. Carney is larger 
than the combined vote was of the candidates for the United States 
Senate or for the candidates for Members of Congress at large. Now, 
then, you also cited the fact that that combined vote is larger than 
the census reports shows was the vote of the entire county. Are we 
to understand that the inference you draw from your statement is 
that men who are not qualified otherwise to vote could present them- 



120 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

selves at the polls and vote only in that contest, eliminating all the 
balance of the ticket? 

Mr. Giddings. No, I did not mean that. 

Mr. Russell. I just wished to ascertain that. 

Mr. Giddings. No. I mean that it is peculiar on its face. I do 
not mean that, although the record shows that when these negroes 
went to the polls in these country districts, and particularly in one 
of them, they asked only for Morgan ballots, evidently figuring that 
Mr. Morgan must have done something somewhere during the elec- 
tion to aid them in saying that their privilege of voting should be 
exercised. 

Mr. Russell. Did they get the Morgan ballots ? 

Mr. Giddings. They said they could not give the Morgan ballot, 
but they would not give them a ballot and let them vote as they 

E leased. This is shown by this record. It is a peculiar circumstance, 
ut indicating that the storm center was here, that they were center- 
ing their fight to save two congressional districts by any sort of 
means. 

Mr. Russell. That was the statement that caused me to ask you 
the question, if they were drilled? Not knowing how to vote the 
whole ticket, if a certain class of men were drilled to vote for just 
one individual? I think I drew that inference from the statement 
you made. 

Mr. Giddings. Something was done evidently because it was a 
peculiar condition. Now, gentlemen of the committee, I desire to 
ask leave to file as part of this argument what, in my judgment, is 
the greatest argument in support of the grandfather clause I have 
ever read, that of the Hon. Joseph W. Bailey, of Texas. Senator 
Bailey gave it to me the other day. I want to make it a part of the 
argument in this case. It is a matter of great moment. 

The Chairman. It will be embodied in the record. 

(The paper referred to is as follows :) 

Contestant's Exhibit A. 

In the Supreme Court of the United States. October term, 1913. No. 423. Frank 
Guinn and J. J. Beal v. The United States. On a certificate from the United States 
Circuit Court of Appeals for the Eighth Circuit. 

Brief for the Appellants. 

[Joseph W. Bailey, Attorney for Appellants.] 

STATEMENT OF THE CASE. 

This case is here on a certificate from the Circuit Court of Appeals for the Eighth 
Circuit, and the questions on which that court has asked the opinion of this court are: 

"(1.) Was the amendment to the constitution of Oklahoma, heretofore set forth, 
valid? 

"(2.) Was that amendment void in so far as it attempted to debar from the right or 
privilege of voting for a qualified candidate for a Member of Congress in Oklahoma, 
unless they were able to read and write any section of the constitution of Oklahoma, 
negro citizens of the United States who were otherwise qualified to vote for a qualified 
candidate for a Member of Congress in that State, but who were not, and none of whose 
lineal ancestors was, entitled to vote under any form of government on January 1, 
1866, or at any time prior thereto, because they were then slaves?" 

The amendment to the Oklahoma constitution, to which the foregoing questions 
refer, is: 

"No person shall be registered as an elector of this State, or be allowed to vote in 
any election herein, unless he be able to read and write any section of the constitution 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 121 

of the State of Oklahoma. But no person who was, on January 1, 1866, or at any time 
prior thereto entitled to vote under any form of government, or who at that time 
resided in some foreign nation, and no lineal descendant of such person, shall be 
denied the right to register and vote because of his inability to so read and write sec- 
tions of such constitution. Precinct election inspectors having in charge the regis- 
tration of electors shall enforce the provisions of this section at the time of registration, 
provided registration be required. Should registration be dispensed with, the pro- 
visions of this section shall be enforced by the precinct election officer when electors 
apply for ballots to vote." 

A comparison of this amendment with the questions of the circuit court of appeals 
will make it apparent that the second question has not been fairly stated, for it assumes 
that the amendment "attempted to debar from the right or privilege of voting" illit- 
erate negroes " who were not, and none of whose lineal ancestors was, entitled to vote 
under any form of government on January 1, 1866, or any time prior thereto, because 
they were then slaves." Certainly the language of the amendment does not warrant 
a, statement of the question in that form, nor do the facts as related in the certificate 
justify that honorable court in concluding that anybody was debarred from the right 
or privilege of voting because they or their ancestors were slaves. 

A PRELIMINARY QUESTION. 

But before proceeding to consider the questions propounded by the circuit court 
of appeals, I feel it my duty to call attention to a preliminary question which, under 
the rule of this court never to decide a constitutional question unless a proper decision 
of the case before it requires it to do so, renders it unnecessary to determine whether 
this amendment to the constitution of Oklahoma is valid or invalid. 

These appellants were indicted under section 5508 of the Revised Statutes, which 
is section 19 of the present Penal Code, for a consipracy to prevent certain negro 
citizens of Oklahoma from voting at a congressional election, and they answered that: 

"As election officers they could not be punished if while acting in good faith they 
made a mistake in administering the provisions of the election law." 

I do not forget that the certificate before this court recites that the question of good 
faith in the execution of that law was submitted to the jury and found against these 
defendants; but the certificate also recites that this question of good faith was coupled 
with the further instruction that the law was unconstitutional, thus injecting an un- 
necessary and improper issue into the case. I say that such an issue was unnecessary 
and improper, because under the plea of good faith it was wholly immaterial whether 
the law was valid or invalid. It was entirely sufficient for their defense that the de- 
fendants believed it to be valid. The appellants further answered that: 

"They could not be properly indicted and convicted for enforcing the suffrage law 
of Oklahoma, without reference to their good faith, because it was their duty to obey 
that law, irrespective of what they thought of its constitutionality." 

That is not the rule in every jurisdiction, but it is the rule in Oklahoma. In some 
States it has been held that an officer can excuse himself for refusing to execute a law 
upon the ground that it is unconstitutional, but the highest court in Oklahoma has 
decided, in the case of Cruce v. Cease, that no officer of that State can refuse his obedi- 
ence to any law of that State upon the ground that he thinks it unconstitutional, and 
this court has said, in the case of Smith v. Indiana (191 U. S., 148), that whether an 
officer is permitted to excuse himself for refusing to obey a law of his State because he 
thinks it unconstitutional is purely a local question, to be determined according to 
the law of the State in which it arises. Therefore it was a full and perfect defense 
against this indictment for these defendants to answer that what they did was done 
under the command of a law of their State which no court of competent jurisdiction, 
up to the time of the transaction for which these men were indicted, had ever declared 
unconstitutional. 

That both of these propositions were practically ignored by the trial court, and that 
the conviction of these appellants was based entirely upon the supposed unconstitu- 
tionality of the suffrage amendment to the Oklahoma constitution, is manifest; because 
otherwise the circuit court of appeals would not have asked this court to advise it upon 
the constitutionality of that amendment. 

The Solicitor General, in his brief, contends that we can not be heard to offer these 
objections in this court, because we excepted to the charge of the court below upon the 
constitutionality of the amendment; but I am unable to comprehend by what rule 
of law or logic our exception in the court below could preclude us from raising this 
question hore. We had a right to except to that instruction, both because it was 
erroneous as a matter of law and also because it was not applicable to the facts in the 



122 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

case; but even if we had excepted to it only upon the ground that it was erroneous as a 
matter of law, that would not waive our right to say, nor relieve us from the duty of 
saying, here that, even if sound in law, it was not relevant under the facts. 

ARGUMENT. 

I come now to the questions certified by the circuit court of appeals, and I believe 
that I can establish to the satisfaction of this court that this amendment to the consti- 
tution of Oklahoma is valid, though it is not necessary for me to do that, because it 
must stand, unless the Government can show that it conflicts with the fifteenth amend- 
ment to the Constitution of the United States. I am aware, of course, that in several 
briefs which have been filed by volunteers in this case it is contended that this amend- 
ment to the constitution of Oklahoma is repugnant to the fourteenth amendment to 
the Constitution of the United States, and my associates have devoted a very con- 
siderable part of their brief to answering that contention. They did that, however, 
because at the trial the district attorney insisted that the fourteenth amendment had 
been violated, and counsel for the defendants could not anticipate that the Govern- 
ment woidd abandon, in this court, a view which had been urged so vigorously in the 
court below. 

The Solicitor General, however, in his brief, does not invoke the fourteenth amend- 
ment and relies entirely upon the fifteenth amendment. I, therefore, feel that it is 
not necessary for me to detain the court in an effort to demonstrate that the fourteenth 
amendment is not to be considered here, and I will dismiss that insistence with the 
remark that plainly and on its face the fourteenth amendment refutes the idea that it 
limits, or that it was intended to limit, the right of the several States to prescribe the 
qualifications of their voters. 

Unless the amendment to the constitution of Oklahoma, which is here under chal- 
lenge, violates the fifteenth amendment to the Constitution of the United States, it is 
free from all constitutional infirmity, and reduced from a general to a particular state- 
ment, the questions certified to this court by the circuit court of appeals, in effect, are : 

Does the suffrage amendment to the constitution of Oklahoma violate the fifteenth 
amendment to the Constitution of the United States? 

In order to answer that question fairly and satisfactorily it is, of course, necessary 
for us first to determine what the fifteenth amendment to the Federal Constitution 
forbids, and then determine whether the State of Oklahoma has attempted to do any 
forbidden act. The fifteenth amendment to the Constitution of the United States 
declares: 

"The right of citizens of the United States to vote shall not be denied or abridged 
by the United States or by any State on account of race, color, or previous condition of 
servitude . ' ' 

There has been some criticism against that amendment in so far as it seems to assume 
that it is "the right" of any person to vote, because by universal consent voting is a 
privilege rather than a right, and especially "citizens of the United States" have no 
right, as such, to vote. It is much easier, however, to justify the criticism than it 
would be to so word the amendment as to avoid it, without making it read more like 
a statutory than a constitutional provision. But whatever may be said about the 
phraseology of the amendment, the meaning of it is so perfectly plain that it can not 
well be misunderstood. Under its prohibition neither the United States nor any 
State can deny or abridge the right of any citizen of the United States to vote on 
account of race, color, or previous condition of servitude. There can be no doubt as 
to the persons thus protected, or as to the acts against which they are protected; nor 
do I think there can be any reasonable doubt as to the extent of the protection. 

Does this amendment to the constitution of Oklahoma deny or abridge the right of 
any citizen of the United States to vote on account of race, color, or previous condition 
of servitude? I confidently assert that it does not, and I invite a careful examination 
of its language. In order that Ave maybetter underst and the effect of the amendment, 
perhaps it would be well for us to read the original suffrage provision. The consti- 
tution under which Oklahoma was admitted into the Union provided, with certain 
exceptions not essential in this connection, that — 

"The qualified electors of the State shall be male citizens of the United States, 
male citizens of the State, and male persons of Indian descent, natives of the United 
States, who are over the age of twenty-one years, and have resided in the State one 
year, in the county six months, and in the election precinct thirty days next preced- 
ing the election ait which any such elector offers to vote." 

In 1910 the Legislature of Oklahoma submitted, and the people adopted, the follow- 
ing amendment: 



CONTESTED ELECTION CASE OE CARNEY VS. MOEGAN. 123 

"No person shall be registered as an elector of this State, or be allowed to vote in 
any election herein, unless he be able to read and write any section of the constitu- 
tion of the State of Oklahoma. But no person who was, on January 1, 1866, or at 
any time prior thereto, entitled to vote under any form of government, or who at 
that time resided in some foreign nation, and no lineal descendant of such person, 
shall be denied the right to register and vote because of his inability to so read and 
write sections of such constitution. Precinct election inspectors having in charge 
the registration of electors shall enforce the provisions of this section at the time of 
registration, provided registration be required. Should registration be dispensed 
with, the provisions of this section shall be enforced by the precinct election officer 
when electors apply for ballots to vote." 

Before the adoption of the foregoing amendment, every man in Oklahoma, 21 years 
of age and possessing certain qualifications of citizenship and residence, could vote; 
but the first sentence of that amendment requires that, in addition to the qualifications 
theretofore sufficient, each voter shall be able to read and write any section of the 
Oklahoma constitution. It is apparent, therefore, that this first sentence abridges 
the right of suffrage in that State; but as that abridgment is not based upon race, 
color, or previous condition of servitude it is perfectly valid. Indeed, the brief of 
the solicitor general admits its validity, and concedes that if it stood alone it could 
not be successfully assailed; but he contends that the exception contained in the 
second sentence renders the entire amendment void . Thus analyzed and still further 
reduced, the single and the simple issue which confronts us in this case is: 

Does the exception contained in the second sentence of this amendment to the 
constitution of Oklahoma deny or abridge the right of any citizen of the United States 
to vote on account of his race, color, or previous condition of servitude? 

According to its clear and unequivocal import that second sentence does not deny 
or abridge the right of any citizen to vote. Certainly it does not do so in words, and 
there is no rule of construction by which it can be tortured into doing so through its 
effect. No law, and no part of any law, can be said to deny or abridge the right to 
vote, unless it takes that right away or restricts it in some degree. Does this excep- 
tion take away any citizen's right to vote, or does it restrict that right in any manner 
whatever? It does neither, and it was incorporated into the amendment for the very 
purpose of enabling some men to vote who would be unable to vote without it. Could 
any difference be wider, or could any difference be plainer than that which must 
exist between one provision which enables and another provision which disables? 
The two are as wide apart as an affirmative and a negative. 

Let us separate the exception which is claimed to vitiate this amendment from 
everything else and see if we can make it answer our question. This is the way it 
reads: 

"But no person who was on January 1, 1866, or at any time prior thereto, entitled 
to vote under any form of government, or who at that time resided in some foreign 
nation, and no lineal descendant of such person, shall be denied the right to register 
and vote, because of his inability to read and write any section of the constitution." 

Here is an express declaration that "no person" who comes within the terms of 
this exception "shall be denied the right to register and vote," and yet this court 
is urged to decide that this sentence does not mean what it says, and that, although 
in words it expressly provides that those within its terms shall not be denied the right 
to register and vote, it really means that those not within its terms shall be denied the 
right to register and vote. 

This could not be sound logic, because the "shall not" which works the abridgment 
was spoken before this exception was ever written; and every man whose right to 
vote is abridged by this amendment suffers under the first sentence of it, and not 
under the second sentence of it. Every man who looks to the second sentence does so 
only in the hope of finding that it will relieve him from the disability to which the 
first sentence subjects him. A moment's reflection upon the method of enforcing 
this amendment will be sufficient to satisfy us on this point. When a citizen, possess- 
ing the requisite age, citizenship, and residence, offers to vote, he must satisfy the 
election officers that he can read and write any section of the constitution, and he 
is permitted to vote. If, however, he cannot read and write any section of the con- 
stitution, the election officers then look to the exception to see whether or not he comes 
within it; but they look to that exception merely to see if it will enable the citizen 
to vote, and never to see whether it deprives him of that privilege. 

Let me state the same proposition in a different form. This exception could not 
deny or abridge any man's right to vote, because it permits every man possessing the 
qualifications prescribed in the original constitution and who can read and write, 
as required by the amendment, to vote precisely as he could have voted if this excep- 
tion constituted no part of the amendment. In other words, this exception gives 



124 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

some men the right to vote whose right the general rule would deny, but it does not 
deny the right of a single living man to vote who would be permitted to vote under 
the general rule if the exception had never been written into the amendment. 

A discrimination, not an abridgment. 

The exception undoubtedly discriminates in favor of all who come within its terms, 
and it may constitute a denial of the equal protection of the law as to those who do 
not come within its terms. If, therefore, the fourteenth amendment applied to the 
question of suffrage, this exception might be invalid under the equal-protection 
clause of that amendment ; but the fourteenth amendment does not apply to questions 
of suffrage, and, consequently, this court can not condemn this amendment to the 
Oklahoma constitution, because it discriminates in favor of one class, and thus denies 
the equal protection of the law to other classes. 

I am not unmindful of the fact that beginning with the Reese case various members 
of this honorable court have said from time to time that the fifteenth amendment 
secures, and was designed to secure, our negro citizens against discrimination. Those 
statements, however, have in every instance been made by way of argument, and for 
the purpose of that argument they were accurate enough; but when we come to deal 
with the precise question, a much greater accuracy is demanded. Indeed, nothing 
less than absolute accuracy will suffice here. This court has never decided that the 
fifteenth amendment secures, or was intended to secure, out negro citizens against 
discrimination; and, in my judgment, it will never do so, because it can not so decide 
without reading into the Constitution words which are not there, or attaching to the 
words which are there a meaning which they do not convey, according to any dic- 
tionary, legal or literary, ever yet published. Deny does not mean discriminate. 
Abridge does not mean discriminate. Undoubtedly it would be possible to frame a 
discriminating law which would deny or abridge; but in that case the law so framed 
would be void, not because it discriminated, but because it denied or abridged. If 
the State grants to me a privilege to which I am entitled under the Constitution of 
the United States, it does not then abridge or deny my right by granting a greater 
privilege to my neighbor, and the latter grant would be plainly within the competence 
of the State, except for the fourteenth amendment, which does not apply to or control 
the case at bar. 

Having enacted valid laws under which the privilege of voting may be exercised 
within its jurisdiction, a State has the right to exempt any of her citizens from the 
operation of those laws, even though the exemption be made " on account of race, color, 
or previous condition of servitude;" and Oklahoma having established a general rule 
of suffrage which accords with the fifteenth amendment to the Federal Constitution, 
can, if she so desires, exempt all of her Indian inhabitants from the exactions of that 
rule expressly on account of their race. It is known to all intelligent men in that 
State that a very considerable part of its population is composed of Indians who have 
long been under the guardianship of the General Government, and have been permitted 
to grow up in utter ignorance of the English language, in which the constitution of 
Oklahoma is written. Recognizing that unfortunate condition, the State, after having 
prescribed her qualifications of age, sex, citizenship, and residence, and after adding 
to those qualifications the requirement that every voter shall be able to read and 
write any section of her constitution, might have deliberately provided that all men 
of the Indian race, otherwise qualified, could vote notwithstanding they are unable 
to read and write. 

If any northern State, having either a property or an educational qualification, 
should see fit to do so, it could dispense with those requirements as they affect men 
of the negro race. The State of Massachusetts might well have said after the adoption 
of the fifteenth amendment that, while adhering to her educational qualification for 
all other voters, she would exempt the lately emancipated slaves from it upon the 
ground that the condition of slavery precluded them from obtaining an education. 
Would the exemption thus extended to the Indian specifically on account of his race 
by the State of Oklahoma, or the exemption extended to the negro specifically on 
account of his previous condition of servitude by the State of Massachusetts, have 
denied or abridged the right of any other man in either State to vote? Would not 
every man in both States be able to vote under their general rule precisely the same 
as he could have done if no exemption had been extended to the Indian in Oklahoma 
or to the negro in Massachusetts? Is it not plain that the exemption would merely 
enlarge the right of the Indian in the one case and the negro in the other without 
denying or abridging in the least the right of others? 

Every man in Oklahoma who could vote under this amendment, if it did not contain 
the exception, can vote notwithstanding the exception; and since the solicitor general 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 125 

admits that the amendment would be valid without the exception, how can he ask 
this court to hold that this exception invalidates the amendment in the fact of the fact 
that it does not prevent a single man in all the State of Oklahoma from voting? The 
only denial or abridgment of the right to vote which can be found in this amendment 
to the constitution of Oklahoma is contained in its first sentence which withdraws 
the franchise from all of those who were qualified to vote at the time of its adoption, 
unless they are able to read and write any section of that State's constitution ; and 
every man in that State whose right to vote is denied or abridged will find that denial 
or abridgment imposed upon him by the original constitution, which has not been 
assailed, supplemented by the first sentence of the amendment, which the solicitor 
general freely acknowledges to be valid. The argument of the Government then 
presents the strange inconsistency of admitting the validity of that part of the amend- 
ment which actually denies or abridges the right of certain people to vote, while 
disputing the validity of that part which does not deny or abridge the right of any man 
to vote, but actually enlarges the right of all who come within its terms. 

Purpose of the amendment. 

But in answer to all this we are told that, while the exception on its face appears 
merely to enlarge the right of some men to vote, it was contrived with the deliberate 
purpose of disfranchising the negroes, and that if sustained it must inevitably produce 
that effect. On page 12 of his brief the Solicitor General says: 

"Of course, this grandfather clause does not use any adjective of color and does not 
designate any race or refer in express terms to any previous condition of servitude. If 
it read that 'all illiterate persons who on January 1, 1866, or at any time prior thereto, 
were not entitled to vote because of their race, color, or previous condition of servi- 
tude * * * shall be denied the right to register and vote, ' no one would dispute its 
unconstitutionality. In effect, though not in words, it says just that. In law, as in 
mathematics, things which are equal to the same thing are necessarily equal to each 
other; and the meaning of a phrase, not the words in which it happens to be couched, 
must be considered." 

That does not bring us any nearer to a sound conclusion, because the exception does 
not read that "all illiterate persons who, on January 1, 1866, or at any time prior 
thereto, were not entitled to vote on account of their race, color, or previous condition 
of servitude * * * shall be denied the right to register and vote." It does not 
say that, either in words, or in substance, or in effect. I could allow all that the Solici- 
tor General can claim for his argument in this particular respect by conceding that 
the State, having made an exception to its general rule, could not then, on account of 
his "race, color, or previous condition of servitude," exclude from that exception any 
person who comes within it; but that concession would not help the Government's 
case, because this exception does not itself contain any exception, and therefore does 
not, for any reason, deny its benefits to any person who comes within its terms. In 
the case which the Solicitor General supposes certain persons would be excluded 
expressly on account of their race, color, or previous condition of servitude; but he 
can not find any such disqualifying clause in the Oklahoma amendment, for even the 
exception extends its privilege to all who come within it, without regard to their 
"race, color, or previous condition of servitude," and the fact that some negroes are 
not within its terms can no more invalidate it than the other fact that some white men 
are not within them. 

But even if it were true that the legislature which drafted and the people who 
adopted this amendment did so with the settled purpose in their minds of disquali- 
fying the negroes of Oklahoma, still this court could not pronounce that amendment 
void, because — 

No enactment which is valid on its face can be held invalid by this court on account 
of the unlawful motives or purposes which are supposed to have actuated those by 
whom it was enacted. 

There are those who doubt the wisdom of that rule and who think that under proper 
allegations and proof the court should be permitted to inquire into questions of that 
kind; but whether the rule be wise or otherwise it is the rule in this court, and it was 
explicitly laid down in the case of McCray v. The United States, which was decided 
within the last ten years, and in which it was declared: 

"It is, of course, true, as suggested, that if there be no authority in the judiciary to 
restrain a lawful exercise of power by another department of the Government, where 
a wrong motive or purpose has impelled to the exertion of the power, that abuses of a 
power conferred may be temporarily effectual. The remedy for this, however, lies, 
not in the abuse by the judicial authority of its functions, but in the people, upon 



126 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

whom, after all, under our institutions, reliance must be placed for the correction of 
abuses committed in the exercise of a lawful power." 

Of course, I understand that the law under consideration in that case was one passed 
by Congress, and I know it has sometimes been said that this court is not required to 
apply the same rule to State statutes or State constitutions as it applies to the laws of 
Congress; but certainly no good reason for such a distinction can be given. It is 
proper that the courts should indulge every reasonable presumption that Congress will 
not exceed its powers, for such a consideration is due from one branch of the Federal 
Government to the other; but surely a constitutional amendment, which was drafted 
first by the legislature of a State and then adopted by a solemn act of the people, is 
entitled, in this court, to a consideration no less respectful than is accorded to tbe 
proceedings of Congress. 

Without controverting my proposition that the court can not hold an enactment 
which is valid on its face, invalid because of the motives or purposes behind it, the 
Solicitor General evades it by stating another rule of law, and on page 24 of his brief 
he lays down the following: 

' 'The necessary effect and operation of a State statute or constitutional amendment 
may be considered in determining its validity under the Federal Constitution." 

I do not controvert that proposition, and it is not necessary for me to do so in this 
case, because it is inapplicable. Even if it were true that ' 'the necessary effect and 
operation" of this amendment is to deny or abridge the right of a man to vote on 
account of his ' 'race, color, or previous condition of servitude,' ' that fact can not be 
ascertained from the face of it and could only be established by evidence outside of it. 
It is this circumstance which removes this amendment from the rule laid down by the 
Solicitor General and brings it within the rule laid down by me. 

The cases cited by the Solicitor General undoubtedly sustain the contention that 
the court can consider the ' 'necessary effect and operation" of a State statute or a State 
consitutional provision in determining whether such statute or such constitutional 
provision is repugnant to the Constitution of the United States; but those cases will 
be searched in vain for the slightest intimation that this court can go beyond the face 
of a statute or a constitutional amendment and inquire into the purposes or motives 
which induced its adoption. 

The first case discussed in this connection is that of The Home Insurance Co. v. 
New York (134 U. S.), and while the quotation from it is, of course, literally accurate 
it does not justify any conclusion which is material to this case. There is no suggestion 
in that opinion that this court can nullify the law of a State upon evidence that it 
was designed to accomplish an unlawful end, and the statute which was there called 
in question was held a valid exercise of its power by the State. 

The second case on which the Solicitor General relies is that of Yick Wo v. Hopkins 
(118 U. S.). The court held there that the statute of California, on its face, armed the 
officers authorized to enforce it with a power so arbitrary as to amount to a denial of 
the equal protection of the law, and in reaching that conclusion it rejected — what it 
seldom does — the construction of a State law announced by the highest court of that 
State. The quotation from that case which appears in the brief of the Solicitor General, 
standing alone, would seem to assert that this court wuld declare void the law of a 
State "fair on its face and impartial in appearance," because it was "applied and 
administered by the public authority with an evil eye and an unequal hand." Of 
course, this court never intended to announce such a doctrine, for it would be an 
absurdity to say that a valid law could be rendered invalid by the manner of its 
enforcement. This court meant no more by the language which the learned Solicitor 
General has quoted than to say that the administration of the law might be such as 
to deprive certain persons of the equal protection of the law, and therefore within the 
prohibition of the fourteenth amendment to the Federal Constitution. I do not 
overlook the fact that in passing upon the statute according to its terms the court 
condemned it as necessarily involving a denial of the equal protection of the laws; 
but in that part of the opinion to which the Solicitor General invites the attention 
of the court the learned justice who delivered that opinion was discussing another 
branch of the proposition, and he there declared, in addition to what he had said 
about the law itself, that the method of its enforcement violated the equal protection 
clause of the fourteenth amendment, and, therefore, even if the statute itself were 
valid, the acts of the officer done under the color of its authority were repugnant to 
the Federal Constitution and void. 

The third case relied on by the Solicitor General in his brief is that of Bailey v. 
Alabama (219 U. S.), but the prevailing opinion in that case does not give any coun- 
tenance to the doctrine that this court can look beyond the language of a State statute 
and condemn it on account of the motives which inspired its enactment. In fact, 
that opinion, as I understand it, held the Alabama law void on its face, because, 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 127 

though it pretended to accomplish a lawful object, it accomplished in its necessary 
operation and effect a different and unlawful object. Indeed, the opinion, even in 
the quotation which the learned Solicitor General makes from it, expressly declares 
that — 

"Without imputing any actual motive to oppress, we must consider the natural 
operation of the statute here in question (Henderson v. Mayor, 92 U. S., p. 268), and 
it is apparent that it furnishes a convenient instrument for the coercion of which 
the Constitution and the act of Congress forbids." 

There is not the remotest suggestion there of an inquiry into the motives of the legis- 
lators who enacted that law, but the decision rested on the face of the law itself. 

The process of reasoning which conducted the court to its conclusion in all of the 
cases relied upon by the Solicitor General is very different from that which the court 
is invited to follow in this case, and nothing could better illustrate that difference 
than the brief of the Solicitor General himself. He does not confine his argument 
against the amendment to the language of it, but he lays before the court facts drawn 
from various sources to show that the purpose in the minds of those who adopted that 
amendment was an unlawful one. He enters into an elaborate discussion, based 
upon the census of the United States, as to the relative number of negroes and white 
people in the State of Oklahoma; and as if to emphasize the danger of such an argu- 
ment, hemakesthemistakeofincorrectly stating the number of Statesin which negroes 
had been permitted to vote prior to January, 1866. I do not, of course, mean to impute 
to the Solicitor General any intention to mislead the court, but the list of States which 
he gives as permitting the negro to vote is less than one-half of those in which negroes 
enjoyed that privilege. 

In order to confirm my interpretation of the three cases relied on by the Solicitor 
General, I will reproduce from his brief his own extract from the case Soon Hing v. 
Crowley (113 U. S.). The Solicitor General avers that this Crowley case does not 
limit or qualify the rule for which he contends; but according to my view it completely 
negatives, at least, the application of his rule to this case, and completely establishes 
my rule as the one by which it must be governed. Here it is exactly as it appears in 
the Solicitor General's brief, stars, italics, and all: 

"* * * There is nothing, however, in the language of the ordinance, or in the 
record of its enactment, which in any respect tends to sustain this allegation. And 
the rule is general with reference to the enactments of all legislative bodies that the 
courts cannot inquire into the motives of the legislators in passing them, except as 
they may be disclosed on the face of the acts, or inferrible, from their operation, consid- 
ered with reference to the condition of the country and existing legislation. The 
motives of the legislators, considered as the purposes they had in view, will always 
be presumed to be to accomplish that which follows as the natural and reasonable 
effect of their enactments. Their motives, considered as the moral inducements for 
their votes, will vary with the different members of the legislative body. The diverse 
character of such motives, and the impossibility of penetrating into the hearts of men 
and ascertaining the truth, precludes all such inquiries as impracticable and futile. 
And in the present case, even if the motives of the supervisors were as alleged, the 
ordinance would not be thereby changed from a legitimate police regulation, unless 
in its enforcement it is made to operate only against the class mentioned; and of this 
there is no pretence (pp. 710-711). " 

"The rule is general with reference to the enactment of all legislative bodies that the 
courts can not inquire into the motives of the legislatures in passing them, except as 
they may be disclosed on the face of the acts or inferable from their operation, con- 
sidered with reference to the condition of the country and existing legislation " ; and 
according to that general rule no evidence can be introduced from obsolete State con- 
stitutions or from census reports for the purpose of impeaching the motives or purposes 
of the Oklahoma Legislature in submitting this amendment, or the Oklahoma people 
in adopting it. 

But there is still a stronger case, and a case more directly in point, even than that 
of Soon Hing v. Crowley. The same assault which is made here upon the constitution 
of Oklahoma was made upon the constitution of Mississippi in the Williams case. It 
is true that the constitution in that case was not in all respects like the constitution 
involved in this case, and the question there was one of jury service, depending on 
the right to vote, but the same charge that it was intended to disfranchise the negroes 
was made against it. In the case of Ratcliff v. Beal, the Supreme Court of Mississippi 
was called upon to consider this question, and with a candor which does it infinite 
credit that tribunal did not attempt to disguise the purpose which the constitutional 
convention of Mississippi had sought to accomplish. Here is the way it met the 
allegation : 



128 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

"Within the field of permissible action under the limitations imposed by the Fed- 
eral Constitution, the convention swept the field of expedients, to obstruct the exer- 
cise of suffrage by the negro race. " 

And further the court said, speaking of the negro race: 

"By reason of its previous condition of servitude and dependencies, this race had 
acquired or accentuated certain peculiarities of habit, of temperament, and of charac- 
ter, which clearly distinguished it as a race from the whites. A patient, docile people; 
but careless, landless, migratory within narrow limits, without forethought; and its 
criminal members given to furtive offenses, rather than the robust crimes of the whites. 
Restrained by the Federal Constitution from discriminating against the negro race, 
the convention discriminates against its characteristics, and the offenses to which its 
criminal members are prone. " 

With this frank admission of the Mississippi court before him. the learned justice 
who delivered the opinion in the Williams case declared: 

"But nothing tangible can be deduced from this. If weakness were to be taken 
advantage of, it was to be done 'within the field of permissible action under the limi- 
tations imposed by the Federal Constitution, ' and the means of it were the alleged 
characteristics of the negro race, not in the administration of the law by the officers 
of the State. Besides, the operation of the constitution and laws is not limited by 
their language or affects to one race. They reach weak and vicious white men as 
well as weak and vicious black men, and whatever is sinister in their intention, if 
anything, can be prevented by both races by the assertion of that duty which volun- 
tarily pays taxes and refrains from crime." (Williams v. Mississippi. 195 IT. S.). 

So we say, in defense of the Oklahoma constitution, that its "operation is not limited 
by its language or affects to one race. " Both its abridgments and its exemptions apply 
to white men as well as black men, and whatever is sinister in their intentions, if any- 
thing, can be easily escaped by both races, if only they will learn to read and write. 

A distinguished lawyer in a brief which he has volunteered in this case declares 
that if this amendment to the constitution of Oklahoma is held valid, then "the 
provisions of the Constitution which establish and protect the rights of some ten 
million colored citizens of the United States are not worth the paper on which they 
are written;" but I venture to say that he was moved more by his zeal than by his 
judgment to make that declaration. It is of a kind with much that was said against 
the decision of this court in the Slaughterhouse cases, but the men who prophesied 
that the fourteenth amendment would be emasculated and the purpose of it defeated 
by that decision all lived to see their prophecies falsified, and were compelled to 
admit that the fourteenth amendment, as construed in that decision, has served the 
purposes for which it was designed. 

The fifteenth amendment to the Constitution of the United States, as I read it, 
and as I think this court ought to construe it, will do all that its authors intended 
it to do or expected it to do ; for as so read and as so construed it has forever rendered 
it impossible for any State to adopt qualifications for the elective franchise with 
which a man's race, color, or previous condition of servitude renders it impossible 
for him to comply. That was all which the authors of this amendment desired or 
expected to accomplish by it, and beyond that they left the regulation of its suffrage 
to every State precisely as it had existed from the organization of the Republic. 

If the State of Oklahoma had a right to say that no person could vote in any of her 
elections unless he could read and write any section of her constitution — and it is 
admitted that in so saying she would not deny or abridge the right of any person to 
vote on account of his "race, color, or previous condition of servitude" — by what 
process of reasoning, then, can we conclude that the fifteenth amendment to the Federal 
Constitution forbids her to except any class of citizens from that rule? The exception 
does not deny or abridge; and if it does not, then it can not conflict with the fifteenth 
amendment. It may be true, and undoubtedly it is true, that to except some people 
from the operation of the rule while leaving othei psople subject to its operation 
would be such a denial of the equal protection of the laws as is forbidden by the 
fourteenth amendment; but I repeat for the thud time that the fourteenth amend- 
ment, which prohibits such a discrimination, does not apply to this case, and the 
fifteenth amendment, which applies to this case, does not touch the question of a 
mere discrimination, and prohibits a denial 01 an abridgment only on account of 
race, color, or previous condition of servitude. 

Under this amendment every man in Oklahoma of the required age, residence, and 
citizenship who can read and write any section of her constitution is permitted to 
vote, no matter what his "race, color, or previous condition of servitude" may be. 
If he can fulfill that requirement, the black man, or the red man, or the yellow man, 
can vote precisely the same as the white man. It is no answer to this admitted fact 
for the Government to say that many white men and only a few negroes are embraced 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 129 

% 
within the terms of the exception. The constitutionality of this amendment can 
not be determined by a count of heads, and the fact that it may include some negroes 
and may exclude some white men is irrefragable proof that it does not deny or abridge 
the right to vote on account of race, color, or previous condition of servitude. That 
amendment only demands something which every man can learn to do and which 
every man should learn to do; something which will not only qualify him the better 
to exercise the privilege of voting, but will also prepare him the better to provide 
for himself and those dependent on him. It erects a standard which men of every 
"race, color, and previous condition of servitude" may attain, and in the attainment 
of which they are helping themselves as well as the State. 

CONCLUSION. 

I therefore submit that if this court shall deem it proper to answer the questions 
certified by the Circuit Court of Appeals for the Eighth Circuit, it should answer the 
first question in the affirmative and the second question in the negative. 

Joseph W. Bailey, 

Attorney for Appellants. 

Mr. Giddings. Now, gentlemen of the committee, you would think 
from the statements of Mr. Morgan that the precinct election officials 
in Oklahoma had been very harsh with these negro voters. The 
records will show here, I think, over a hundred prosecutions in the 
Federal courts of white men. Mr. Morgan says there is no negro 
question down there. In one of the black belts in Oklahoma, not in 
the second congressional district, where uniformly the negroes have 
voted, they have elected men of their own race to the school board, 
to whom white women have to apply in order to get school positions, 
and by whom white women are quizzed in order to obtain positions 
in the public schools, and I do not blame the white men in that 
county for using every means in their power to prevent such a con- 
dition, and that is the situation in Wagener County and throughout 
the State, and yet the gentleman has the temerity to say there is no 
race question in Oklahoma. Read the papers. Read the records of 
the courts. Read the cases, even, that the gentleman has presented 
here, and tell me there is no such question and such an issue in that 
district. 

I have not discussed this Blaine County proposition. I do not 
intend to discuss it to any- extent, because it has no bearing on this 
case, excepting this proposition, that Mr. Morgan concedes he is 
elected without Blaine County, and concedes if he is not elected he 
can be elected with Blaine County. Therefore, why argue a proposi- 
tion when the record shows admittedly that state of facts ? But I 
want to show you by the record that the certificate of election pre- 
sented indicated an official majority in the county for Mr. Carney of 
51; that by some hocus-pocus Mr. Morgan desires to take these 11 
precincts and add to his vote, leaving out the balance of the vote in 
the county which shows a majority for Mr. Carney. 

Let me call your attention to one statement he made in answer to 
a question of Mr. Oglesby's, and then pass on to Blaine County just 
for a moment. It is in his written statement here in reply to a ques- 
tion. I will leave it to your memories that he made the statement, 
in reply to Mr. Oglesby, that it did not affect the result one way or 
the other. 

Gentlemen of the committee, it is utterly impossible for me to go 
through the entire argument of Mr. Morgan, or through this entire case, 
from now to the noon hour. The Blaine County case, as I will show 

46996—14 9 



130 CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 

you, has no bearing upon this contest, if the statements of Mr. Morgan 
are to be taken at their par value, for he says that regardless of which 
way the case goes it is not dependent upon the vote in Blaine County, 
and he makes the bald statement here that Mr. Carney ought to be 
willing that the vote of Blaine County under this record, and you, Mr. 
Morgan, ought to be willing, to say that an election where such 
methods are used is absolutely and irretrievably void, because it 
ought to work both ways. 

With regard to the Blaine County case let me read you the testi- 
mony of the Democratic State committeeman, which is to be found 
on page 144 of the record. After saying that he saw these letters 
and things of that sort, he is asked this question, and you will see 
what a condition we have in Blaine County, as they had in Oklahoma 
County, where they admitted on the floor of this committee there 
were 614 Democratic negro votes: 

Q. Is it the common understanding among the people of this county, and particu- 
larly among those who know Mr. Boardman, that he received his appointment as 
United States district attorney through the influence of Dick T. Morgan? — A. I 
think so. 

Q. What part, if any, did Mr. Boardman take in the campaign of Mr. Morgan for 
Congress in the year 1910, if you know? — A. I think he was his campaign manager. 

Q. Prior to the election of 1912 how long had you been the inspector of your pre- 
cinct? — A. Only a day or two — three or four days, you might say. 

Q. What became of the man who had been serving as inspector, or why was it he 
did not serve in the election? — A. The inspector's name was W. A. Stevenson, and 
he resigned as inspector on account of being afraid to enforce the grandfather law; 
so he told me. 

Q. What position did you occupy in the campaign, and how did you come into 
possession of this knowledge, and what efforts were made, if you know, to get men 
to serve as inspectors? — A. I was Democratic State committeeman. On that account 
was making inquiries about how the various inspectors stood on the grandfather law. 
In the precincts round about Watonga the election officials had much difficulty in 
getting anyone to serve as inspector. Same is true in East Lincoln. 

Q. Now, Mr. Temple, just state, if you know, what men had been requested to 
serve as inspector and who refused for fear of a Federal prosecution on account of 
this circular letter of Boardman's? — A. E. L. Ashford, J. H. Temple, C. P. Temple, 
in precinct No. 20; Walter Ferguson, in the west precinct of Watonga. 

Q. To these inspectors who refused to serve and resigned and these men who 
refused to accept the appointment as inspectors, was the prosecution of Beall and 
Quinn generally known? — A. I think so. 

Q. As the inspector in your precinct, did you allow or permit any negro to vote 
that otherwise you would not if you had not received or known of these threats of 
the Federal prcsecution? — A. Yes; there were some negroes voted whom I would 
not have permitted to vote had I been sure there would be no Federal prosecution. 

Q. State, if you know, if your answer is true with reference to other precincts in 
this county? — A. It is my opinion that all inspectors were more or less intimidated 
by threats of Federal prosecution. 

Gentlemen of the committee, in conclusion, I want to make this 
statement, that I have always had my doubts, and still have my 
doubts, that the negro anywhere in the United States was ever en- 
franchised, because the fullest acquiescence of the people of the South 
was never had in the adoption of the fourteenth and fifteenth amend- 
ments; because of the mere declaration by Congress that they had 
been adopted when the question of their adoption was not a question 
for Congress to determine, but for the judiciary to determine, because 
it was a judicial question, and because of the fact that this particular 
fourteenth amendment did not have the requisite number of the votes 
of the States voting for it, and because of numerous other facts. I do 
not want to cut my friend, Judge Carney, out of making an argument 



CONTESTED ELECTION" CASE OP CARNEY VS. MORGAN. 131 

on this line. In the light of the evidence and in the light of the au- 
thorities, that question is not at issue, unless it is necessary, first, for 
you to say that under the evidence the intimidation was not such a 
legal intimidation as to affect the result of the election and that if it did 
not affect the result and the contestee could not and had not anything 
to do with it, could not be blamed with it, and then it would become 
the duty of this committee, if it was adverse to finding intimidation 
and as to illegal voting, to pass upon this question. I do not waive it. 
I have never seen an argument that could uphold the constitutionality 
of the fourteenth and fifteenth amendments, that could show, by the 
records of Congress, that the necessary vote thereon in the Congress 
of the United States and throughout the States had ever ratified, 
sanctioned; or adopted those amendments. That argument may 
exist, and if it is in this record I want a copy of it that future genera- 
tions may know exactly that at last, years after this injustice had been 
done the people of the South, somebody had been able to show by 
records and by authorities and by absolutely indisputable proof the 
adoption of the fourteenth amendment. So far, in the history of this 
Nation, it has not been adopted, and I do not mean in any manner, 
shape, or form, gentlemen of the committee, in this contest to waive 
that question. I have not talked upon it, simply and solely because 
I did not think it necessary in the determination of this case. It is 
scarcely up to this committee. If it is raised in this proceeding it will 
be necessary for the committee to pass upon it, which has never been 
done by any tribunal in this Nation, and inconceivable as the fact 
may seem, in the event you make an adverse finding as to the con- 
testant's case with regard to the law of intimidation and the number 
of illegal votes cast, it will be your duty to pass upon it. 

Mr. Oglesby, when you read this record, and I presume you will, 
you will find I have answered in detail the question you asked me, and 
every other question asked me, predicating my proposition on the fact 
that the authorities uniformly hold— McCreary on Elections and all — 
that where it is impossible to separate the good and bad the election 
becomes void — at least throwing on the shoulders of the contestee the 
burden of proving that it did not affect the result. 

Now, I want to use as a part of this closing argument the language 
I have used in that brief. I want to see an argument based upon the 
records of Congress and the decisions of the courts of the land that have 
ever held affirmatively, not by indirection, the adoption of these 
amendments. I say it is a judicial question. I say the Supreme 
Court of the United States has never passed upon it, excepting that it 
has adopted the holding that the question of its adoption was not de- 
cided in the decision of a particular case in controversy, and it is not 
true that because of so long a period of time that it will be presumed 
to have been adopted and that the. laws predicated upon it must be 
upheld, because the Supreme Court has held in a number of cases that 
the lapse of time makes no difference. 

Gentlemen of the committee, permit me in conclusion to thank 
you very kindly for your attention, and to sa,j to you there were 
numerous other matters I would liked to discuss. I have done 
my best to present this case intelligently. I feel outraged by these 
practices within my State. I am here as the representative of the 
major political organization of my State to protest against it, and 



132 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

we leave it to you and ask you to put the seal of your disapproval 
upon such practices and to find that a man can not reap the benefits 
of such practices and frauds and claim righteous indignation as his 
portion. Deep down in the hearts of every man in my district it is 
known who is entitled to a seat in Congress, was entitled and is entitled 
now, in view of this fact and this law, and who, under the condition of 
this record, and with the admissions of these pleadings, is entitled to 
be your colleague rather than this contestee; and it does not lie in the 
mouth of Mr. Morgan to claim his work in Congress is hampered by 
this contest. Mr. Morgan is a practical politician of years' standing, 
and he knows that instead of his work being hampered that it ought 
to be a pleasing reflection to him that his reelection is assured by an 
affirmative vote of this committee in his favor, so that he may go 
back to his people and say a Democratic committee stood by me and 
held this was not intimidation, even as he said before this committee 
that the Democratic supreme court has held this and that to be the 
law when the proper interpretation of those decisions would have 
been otherwise. 

So it is a serious matter to us, and we know you will give it careful 
consideration; and we are satisfied when Judge Carney, a man who 
helped to write the organic act of Oklahoma, who has been on the 
State bench down there ever since statehood, a man of splendid 
integrity and judicial attainments, who fought for his people when 
Oklahoma made her great fight for the right of statehood — I think 
when he gets through with his argument he can demonstrate to you 
by figures that have been so far left out of the argument that our 
contention is right. 

I desire to extend to you, Mr. Chairman and the members of the 
committee, my thanks for your kind attention, and I earnestly hope 
and expect, under this record, a favorable decision at your hands in 
order that, under the provisions of the State constitution of Oklahoma, 
there will be free and fair elections in the State, and that the civil and 
military power shall never interfere therewith and find further vital- 
ization and emphasis at the hands of this committee. 

(Thereupon the committee adjourned to meet on Tuesday, May 5, 
1914, at 10 o'clock.) 



Committee on Elections No. 2, 

House of Representatives, 

Tuesday, May 5, 191 4. 
The committee this day met, Hon. James A. Hamill (chairman) 
presiding. 

STATEMENT OF ME. LOUIS T. MICHENER. 

Mr. Michener. Mr. Chairman and gentlemen of the committee, 
before beginning my argument proper I wish to call attention to a 
mistake in the copy of the grandfather's clause as appears on page 8 
of this record. The last sentence, as copied there, omits nine words 
which the committee may find to be of interest in that connection. 
After the word "with," there should be inserted these words "the 
provisions of this section shall be enforced by," so that the corrected 
sentence would read in this way: 



CONTESTED ELECTION" CASE OP CARNEY VS. MORGAN. 133 

Should registry be dispensed with, the provisions of this section shall be enforced 
by the precinct election officers when electors apply for ballots to vote. 

The provision of the constitution is correctly printed as section 
4-A, Article III, Revised Statutes of Oklahoma. It occurred to me 
that probably the committee might desire to keep that grandfather's 
clause in its report, and therefore I am calling attention to this 
omission of the copyist. 

Counsel for contestant yesterday called attention to the fact, and 
promised that a table would be compiled in support of it, that the 
two candidates for Congress here received more votes than the total 
votes cast for certain other officers in that election. The contestee 
has prepared Table No. 9, which we will submit to the committee, 
showing the votes cast for county officers in the county of Oklahoma 
as well as for the congressional candidates. Mr. Carney and Mr. 
Morgan receiveel a total vote of 12,773. The total vote cast for the 
various candidates for county attorney was 585 more than the total 
votes cast for these two candidates for Congress. The total vote for 
candidates for sheriff was 560 votes more than the total vote for 
candidates for Congress, and the total vote in connection with the 
office of county judge was 224 votes more than the total vote for the 
candidates for Congress, and the total vote in connection with the 
office of superintendent of schools was about the same number, two 
hundred and some odd. 

Table No. 9. — Total vote on official count of county candidates in Oklahoma County, 
Ohla., as published in the Daily OMahoman, November 21, 1912, page 14. 

County judge: 

Democrat 6, 333 

Republican 6, 864 



Total vote 13, 197 

County attorney: 

Democrat 6, 31 2 

Republican 7, 146 



Total vote 13, 458 

District court: 

Democrat 6, 665 

Republican ". 6, 161 

Total vote '. 12, 826 

Sheriff: 

Democrat 7, 472 

Republican 5, 961 

Total vote 13, 433 

County treasurer: 

Democrat 7, 312 

Republican 5, 531 

Total vote r 12, 843 

County clerk: 

Democrat 6, 383 

Republican 6, 363 

Total vote 12, 746 



134 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Register of deeds: 

Democrat 7, 545 

Republican 5, 418 

Total vote 12, 963 

Superintendent of schools: 

Democrat 7, 247 

Republican 5, 698 

Total vote 12, 945 

Clerk supreme court: 

Democrat 5, 813 

Republican 6, 836 

Total vote 12, 699 

Weigher: 

Democrat. 6, 597 

Republican 5, 944 

Total vote 12, 541 

County assessor: 

Democrat 5, 968 

Republican 6, 783 

Total vote 12, 751 

Congressional candidates : 

Carney 6, 837 

Morgan 5, 936 

Total vote 12, 773 

Total vote for county attorney was 585 votes more than the total vote for candi- 
dates for Congress. 

Total vote for candidates for sheriff was 560 more than total vote for candidates 
for Congress. 

Total vote for county judge was 224 more than the total vote for the candidates 
for Congress. 

So it appears there was nothing analogous in this election in the 
fact that Mr. Carney and Mr. Walker received a larger number of 
votes than were cast for the candidates for some of the other officers. 
Mr. Morgan has not been charged in this notice of contest with having 
brought that about, so I think in view of the fact that his friends 
were not in the majority on the election boards anywhere that this 
somewhat singular condition of things may have been imputed to 
Mr. Morgan. It does not seem how that can be so. 

Now, in reaching the case proper, we have heard a great deal 
about the Blaine County vote, and the assertion of Mr. Morgan in his 
answer that these 11 precincts were wrongfully withheld from him 
and that he was lawfully entitled to them. 

Now, an election contest searches the record. It can be made to 
do so, and was made to do so in this case because of the nature of the 
charges in the notice and in the nature of the responses and the 
countercharges filed by Mr. Morgan. In his countercharge he 
claimed those votes. I shall not enter into any detailed discussion 
of the facts as to Blaine County, nor of any other precinct, unless 
requested by the committee to do so, being content with what Mr. 
Morgan said; but I do submit that on the facts and the law arising 



CONTESTED ELECTION CASE OF CARNEY VS. MOEGAN. 135 

therefrom Mr. Morgan is entitled to the votes that were given him, 
according to the genuine first return there, and that that number of 
votes, two hundred and twenty odd, should be added to the number 
that was given him by the State board of election. Otherwise, there 
is no occasion at all for getting the whole truth and all the facts in 
the contested election case. 

Then our next proposition is, that the grandfather clause was en- 
forced in all the precincts in which the negroes vote. Now that 
clause was complied with in all the precincts in one or the other of 
these particular ways : Every negro who presented himself was tested 
on the day of election, or he presented a registration certificate, or 
he had been tested by the inspector at the primary held in August 
and the test proven satisfactory, or the fact that he was able to read 
and write was a matter of common knowledge in the precinct or of 
personal knowledge by the inspector. In these ways the election 
officers put themselves under the direction of the decision of the 
Supreme Court of Oklahoma in the Shaw case, and, more than that, 
gentlemen, they brought themselves under the guidance and pro- 
tection of the opinion of Attorney General West of the State of Okla- 
homa, rendered October 17, 1912. That opinion was made public 
by the attorney general, and with entire propriety, as he was a law 
officer of the State, and it was treated and considered as an instruction, 
or at least as advisory, to the election boards of the State, and I will 
read now and put into the record, with the permission of Mr. McGuire, 
that opinion as set forth on page 15 of his brief in Davis against Mc- 
Guire. It is short and pithy, and I will ask permission to read it to 
this committee : 

After the election of 1910 and prior to the election of 1912, the Democratic attorney- 
general of the State issued an official letter to the public in the nature of an interpreta- 
tion of the law, as well as instructions to the election boards. This letter has been 
referred to a number of times in the record, and is as follows: 

In re enforcement of franchise amendment to Constitution. October 17, 1912. 

Dear Sir: The provisions of the franchise amendment to the State constitution, 
adopted August 2, 1910, commonly called the "grandfather clause," should be en- 
forced in good faith on all cases where the inspector of elections has doubt or lack of 
information as to the qualifications of the person offering to vote. 

The test should also be applied in every case where a ch .llenge is interposed on the 
ground of a lack of qualification under such amendment. 

In those cases, where no such challenge i& interposed and the inspector has no doubt 
or is fully convinced that the person offering to vote possesses the required qualifica- 
tions, such person should be permitted to vote without being subjected to the test. 

The enforcement of this law should not resolve itself into a farce by failure on the 
part of the inspector to require the test in all cases where he has doubt or lack of 
information of the quilifications of the person offering to vote, neither should it be 
used oppressively, viz, by requiring an unusual or unjust test, in cases where the test 
should be required, or by requiring any test at all in cases where the inspector knows 
or is fully convinced that the person offering to vote possesses the necessary qualifi- 
cations. 

As a public official, charged with the duty of assisting in the enforcement of our 
State laws, I believe greater respect for this enactment will be secured and its pur- 
poses fully complied with, if the foregoing instructions are followed. 

These instructions would apply in toto in those precincts only where registration is 
not required. To entitle one to vote in a city of the first class, the elector must be 
possessed of a registration certificate, but, even if registered, he may be challenged 
on the ground that he lacks qualifications under this amendment, and then the fore- 
going instructions would be applicable. 
Very truly, yours, 

Chas. West, Attorney General. 



136 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Stafford. What is the politics of the attorney general ? 

Mr. Eogers. It is stated on that same page, which is page 15, 
that he is a Democrat. 

Mr. Michener. And hi harmony with the opinion of the attorney 
general is section 18, article 8, of the election law of 1907-8, which 
provides : 

_ Certificates of registration shall entitle electors who rightfully hold the same the 
right to vote at all elections held after the date of said registration and before the next 
biennial registration, whether such elections be primary or general. 

In other words, gentlemen, the Supreme Court of the State of 
Oklahoma in the Shaw case and the attorney general of Oklahoma 
in his opinion — his instructions, indeed, in a formal opinion, rendered 
a little while before this election — laid down rules of law that were 
complied with by these election officers. They did no more and they 
did no less than to obey their constitution and laws. 

Now, in regard to the subject of intimidation: No intimidation 
is shown here to justify the throwing out of the vote of any district, 
and upon that proposition, of course, the burden was upon the 
contestant. He has utterly failed? But there is a vast difference 
between intimidation which prevents lawful voters from casting 
their votes and having them counted and that which prevents an 
election officer, through fear or through an awakened conscience, 
or through anything else, from allowing votes to be cast unlawfully. 
Now, in the former case, where the intimidation has prevented the 
lawful voters from voting, the law is plain and positive. All returns 
are set aside and the elections are held null and void. And it ought 
to be so because it would not be possible by evidence to prove how 
many had thus been disfranchised or how they could have voted had 
they gone to the polls. But on the second class — that is, where 
the intimidation was put upon the election officers to compel them 
to allow the casting of ballots by persons who might be lawfully 
entitled to vote or unlawfully entitled to vote — the rule is different, 
for the reason that the record is made of every one who casts his 
vote at a given precinct. It can be done, as has been done many 
times to my certain knowledge in cases of this character, by bringing 
the voters to the place where evidence was taken and take his testi- 
mony as to how he voted and as to his qualifications. Another way 
is to take those who are thoroughly familiar with the man, who know 
his antecedents, and all that, and prove he was an unlawful voter, 
proving it from his own declarations and proving it by the kind of 
ballot lie took and for whom he voted. It is easy enough in that 
way to purge the record, and that is exactly what the courts and the 
House means when it speaks of purging the poll. You ascertain the 
qualifications of the voter and you ascertain for whom he voted, and, 
having done that, you deduct just exactly what was done in this 
Allen and Whitmore case in 38 Oklahoma. 

But the evidence here utterly fails to show that more than 3 
or 4 unlawful votes were cast in any precinct of the 16 here involved, 
and the evidence outside fails to show that one of these men voted 
for this contestee. There is absolute failure of evidence on that 
point. The mere fact that the ^oter wore a dusky skin is not lawful 
evidence as to his political conduct and action when he goes into the 
booth on election dav. 



CONTESTED ELECTION" CASE OP CARNEY VS. MORGAN. 137 

But, Mr. Chairman and gentlemen, even if there was intimidation 
here, there is no evidence to show that it was sufficient in quantity 
to change the result. I shall not go into details. That question 
was so thoroughly discussed by Mr. Walker as to save me that neces- 
sity. No negro, according to this testimony — and I am speaking 
generally — is allowed to vote except when entitled to do so. The 
election officers performed their duty, as I have said. 

But suppose there was some intimidation as to the extent of three 
or four — that is, operated in three or four instances in a given pre- 
cinct. Suppose there was a great deal of intimidation. It was 
without the knowledge or connivance of this contestee. The evi- 
dence is indisputable. The notice of contest makes very strong 
charges against the contestee. It charges him with having been 
a party, to put it in a word, to the writing and distribution of the 
Boardman letter and a circular, but the contestee has gone on the 
witness stand and denied it and also his election managers, and he 
comes here with absolutely clean hands, so far as the Boardman 
letter and circular may be concerned. 

The question we put during the time when Mr. Giddings had the 
floor as to what the effect would be had Mr. Morgan had knowledge 
of that letter and the circular and the distribution. I am not aware 
that it was answered. Suppose the question was put to me and it 
should be put in the minds of the committee, I am not prepared to 
answer. Whatever vote was wrongfully put in the ballot boxes, 
whatever vote of that kind was cast in favor of Mr. Morgan, when 
ascertained and determined by this committee, should be deducted 
from the total of his vote, just as was done in Allen against Whit- 
more. No matter whether Mr. Walker knew of that circular or not, 
whether he knew of the Boardman letter or not, that is the thing 
that should be done; we submit in law simply because if, through 
the operation of these documents, or in any other way, unlawful 
votes were cast for Mr. Morgan, it is within the power of this com- 
mittee and this House, and it is the duty of this committee and 
this House, as we submit, to ascertain the number of those voters, 
ascertain the number of ballots that were cast in that way for Mr. 
Morgan, and then deduct them; not because of the circular, not 
because of the Boardman letter, but simply and solely because 
unlawful votes were cast, and if they were cast for the benefit of 
Mr. Morgan they must be deducted from his count. 

Mr. Russell. May I ask you a question on that point ? 

Mr. Michener. Certainly. 

Mr. Russell. It is claimed by the other side — and I am not 
expressing an opinion at all, as I am not judging this case — that this 
circular letter which was sent out — the Boardman letter and the 
circular — was for the purpose of intimidating, and did intimidate, 
and likely caused a good many to vote who would not have voted 
except for that; and the other side, as you have heard from the 
argument, claimed that that probably changed the result. Now, 
then, for argument, too, if it did not change the result, they having 
shown that this intimidation was used, and that if it had any effect 
at all in preventing a free election, I ask you whether the burden is 
not now upon you to show that it did not constitute changes enough 
to have affected the result ? What do you think about that ? 



138 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Michener. It was the effort of counsel to put intimidation, 
legal intimidation, on the same footing as legal fraud. They are 
utterly antagonistic. Fraud vitiates everything because of its 
insidious character and the impossibility to determine its results. 
Intimidation is open and defined, and where it is of the character 
here involved, and intimidation also is charged to compel the election 
officers to receive illegal votes, then we are at once brought to the 
proposition that there are no illegal votes cast. If so, they are 
recorded. If so, we can determine whether or not they were unlawful 
and by whom they were cast. Therefore, when intimidation is 
charged, you do not charge fraud. The two are utterly antagonistic. 
Of course, there are decisions where there is fraud and fraud is 
established — fraud in a precinct or township or county — and if that 
is established then at once you put those returns in such a situation 
as to call upon the one who received the majority of the votes cast to 
go into the question of the legality of the votes cast for him and 
then take them up one by one and prove them. But that can not 
be the case here, gentlemen, because you will find in examining this 
notice of protest that no fraud was charged. 

Mr. Russell. Would you take the same position in regard to 
intimidation ? If it had been against a voter, and it was claimed, as 
it was in a number of contests, that that intimidation prevented a 
number of men from voting, the burden would be, however, upon 
the man claiming it, to show there were enough men prevented from 
voting to change the result, just the same as you now claim the burden 
is on the contestant to show that enough voted that should not have 
been allowed to vote to change the result. 

Mr. Michener. Where there is a general intimidation exercised 
against a voter and that is established, then the whole vote is stricken 
out, simply because there is no way at all, the authorities say, by 
which you can ascertain the exact result except by appealing again 
to the elector. 

Mr. Stafford. Then the whole intimidation, which is exercised 
against election officers and prevents votes, is in the same category 
as intimidation which permits the voters to vote? 

Mr. Michener. Exactly, for the reason that the intimidation 
which allows or permits unlawful votes puts on record the full extent 
of such allowance or permission. You go to the individual voter and 
scan him, and in that way you ascertain and put on record the whole 
truth about the voter. 

Mr. Oglesby. Then you put in the same category with fraud in- 
timidation exercised against the voter ? 

Mr. Michener. Yes, it seems so to me; but not intimidation exer- 
cised upon the election officer. But in this case there is nothing here 
except estimates, as Mr. Morgan has so fully shown. Nothing but 
estimates as to the number of voters who were permitted to vote 
unlawfully. 

Mr. Russell. Now, whose duty is it to make clear the number of 
votes that did go in by reason of that circular ? 

Mr. Michener. The contestant's duty. That is an affirmative 
proposition, and he must show it. 

Mr. Russell. The question was, you understand, that I asked" 
whether now if intimidation was in fact shown and affected the result 
at all; did that then throw the burden upon your side to show that 
it did not injuriously affect this contestant ? 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 139 

Mr. Michener. Not in the case we have before this committee, 
because here the intimidation charged is that it so operated upon the 
minds of the election officers as to cause them to admit men to vote 
who did not have the right to vote. In that way the record was 
made which can be scanned and could have been scanned and ex- 
amined and supported and attacked by evidence taken in these differ- 
ent counties, but the contestant did not do so. 

Mr. Russell. Do you think if it came to that, that this committee 
should determine that this contestee was entitled to the seat, unless 
it is clearly shown that there were votes enough that went in by 
reason of that letter to have changed the result ? 

Mr. Michener. I do not think I quite understand your question. 

Mr. Russell. Do you think you would say, if it should come to a 
question, that this committee should determine that unless the result 
was affected the contestee would be entitled to the seat 1 That unless 
it clearly appears from the hearings that the result was affected by 
that letter, that he should retain his seat ? If it is a matter of doubt, 
in other words, in the minds of the committee, whether the result 
was changed or not, would you say he is entitled to a seat ? 

Mr. Michener. If the evidence before this committee satisfies this 
committee by a fair preponderance that there were enough of those 
voters given the right to vote through this intimidation whose aggre- 
gate, vote would overcome the lawful vote already received, then, 
of course, the seat would have to be given to the contestant. In 
other words, the committee must take this evidence and this record 
and ascertain how many lawful votes have been given to Mr. Morgan. 
Then it must deduct from that total number whatever votes were cast 
for him unlawfully, just as was done in the Allen-Whitmore case. 

Mr Oglesby. Yes, provided we make the further finding that this 
grandfather clause is constitutional. 

Mr. Michener. Well, it was enforced. 

Mr. Oglesby. But I understand you do not mean by what you 
said to waive your claim that it was unconstitutional. 

Mr. Michener. We have in our response, in our answer and the 
notice of contest, denied the attitude that the contestant took on that 
subject, but we are not arguing here it is an unconstitutional clause 
when tested by the constitution of the Supreme Court of the United 
States ; we think that question is not here. All parties cast their votes ; 
they conducted their campaigns; they appealed to the people with 
that constitutional clause in view, and, so far as we are concerned, 
we are not attacking its validity at all. 

Mr. Oglesby. It clearly appears it was attacked in the election. 

Mr. Michener. Yes, en the hustings and in the newspapers. We 
discuss a great many questions during campaign times in this country 
that really do not enter into the merits of the struggle that is then 
pending. We must have fireworks. 

Mr. Oglesby. You do not want to go on record then as approving 
that circular ? 

Mr. Michener. Oh, no. 

Mr. Broussard. I was going to ask a question which suggested 
itself to me while looking through the brief of Mr. Giddings. I recall 
he quoted a Mississippi case — some one against Hill. 

Mr. Michener. Hill against Cachings. If my recollection serves 
me right, that was the notorious Jim Hill down there— a colored man. 



140 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Broussard. You do not subscribe to the rules set down by 
Congress in that case, do you ? I do not find the case quoted in this 
brief, but I heard the argument of Mr. Giddings citing the case, and 
he held the decision of Congress on that point was that where the com- 
missioners appointed by the Federal Government to supervise these 
elections had been intimidated, that that intimidation was sufficient 
to vitiate the entire proceeding and cancel the election of Cachings. 

Mr. Stafford. That was a minority view he cited. 

Mr. Broussard. I do not find it in here. 

Mr. Stafford. Most of his citations were taken from the brief of 
Mr. Davis. 

Mr. Michener. I have not seen that. 

Mr. Broussard. I have not seen it in print. I heard it in the 
argument. You will recollect Mr. Giddings's statement in regard to it. 

Mr. Michener. Yes. I intended to get that case and I overlooked 
it last night when in the library. 

Mr. Broussard. It occurs to me that opinion was strictly opposed 
to the point you are now making. 

Mr. Michener. If I recall that case right, Judge, there was also 
intimidation upon the people of the district. It did not end with 
intimidation of the election officers. There was a great deal of 
strife and bloodshed and loss of life,*as I remember it. Intimidation 
about prevailed in all ranks of society in that unhappy district at 
that time, and it seems to me whatever rule was laid down by the 
majority or minority, or by the House, in that case would have to 
be tested by the conditions throughout the whole district. But our 
position is — and we are happy in this case that there is no bloodshed 
and no intimidation, except what might have existed in the minds 
of this election officer — that these men were charged by the law and 
designated to perform a duty. They were advised by the supreme 
court of the State that their duty laid along certain lines. They 
were not only advised, but instructed by the attorney general of the 
State, that their duty laid along those lines, and this evidence shows, 
and particularly the cross-examination of these witnesses, that they 
did perform that duty in harmony with the constitutional provision, 
in harmony with the statute laws of the State, and in harmony with 
the decision of the supreme court and in harmony with the instruc- 
tions of the attorney general, and that in ho precinct was there more 
than three or four votes cast unlawfully — assuming they were — for 
Mr. Morgan. But there is an absolute failure to connect Mr. Morgan 
with one unlawful vote — an absolute failure. 

Mr. Oglesby. As I remember, it was stated that these men who 
voted illegally were Republicans and presumably voted for him, but 
you claim there is no positive testimony as to who they voted for ? 

Mr. Michener. That is right. In the year 1912 all past presump- 
tions about party affiliations seem to have fallen to the ground. 
Party lines rested very lightly in the hearts and minds of men — not 
only in Oklahoma, but all over the country. 

Mr. Oglesby. As to the white voters, but I suppose the negroes 
continued to vote the Republican ticket. 

Mr. Michener. I know any numbei of negroes in the border 
States who failed to vote the Republican ticket, and from my per- 
sonal experience I have known negroes to vote the Democratic ticket 
in the border and northern States. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 141 

Mr. Stafford. In connection with the remark I made as to the 
citation called to our attention by Mr. Broussard, I will say that the 
Hill-Cachings case is referred to in the brief of Mr. Davis. But in 
Mr. Giddings' case ,there is a citation, which is a minority report, on 
page 45 of the record, Howard v. Komneys. 

Mr. Broussard. I saw that, but he did not refer to that in connec- 
tion with the other case. 

Mr. Oglesby. Referring to the suggestion you made as to the elim- 
ination of party lines, I have considerable curiosity to know why we 
have not seen anything in this record in regard to the Bull Moose 
vote in Oklahoma. 

Mr. Davis. They did not have any such ticket. They had to file 
30 days before the primary, and at that time there was no Bull Moose 
Party for that reason. 

Mr. Michener. Now, Mr. Chairman, as I have only a few moments 
more I will proceed. I have not tried to discuss this case at length. 
I have only picked out certain points which I thought I would discuss 
with a view to helping the committee. We have never thought, on 
our side, of discussing the question whether or not the fourteenth and 
fifteenth amendments were lawfully adopted, for the reason,- first, that 
the question is purely academic and does not enter into this controversy 
at all. It is not denied, so far as this record shows, that any man was 
deprived of such rights as may have been given him by those amend- 
ments. In the second place, the proclamation of those amendments 
was a political function, and when they were declared by the Secre- 
tary of State as having been adopted he was performing a duty 
political in its nature and he was performing it at the command of 
the President, and it has been decided by the Supreme Court that 
whatever is done by a Cabinet officer is done under the direction 
of the President. The political power of this country is vested in a 
President, and in the Congress of the United States — two Houses; 
not one. So as no court will ever question the political conduct of 
the President of the United States or of the Congress or of any Cabinet 
officer, it follows that this committee, sitting as a court and this House 
sitting as a court can not, and, I think I may be able to say with con- 
fidence, will not consider whether those amendments were lawfully 
adopted, and it is for this reason that we never had any thought of 
discussing the validity of the adoption of those amendments. 

Now, in conclusion, gentlemen, permit me to say that these charges 
covering every precinct — 493 in that district — have only been dealt 
with so far as 1 6 precincts are concerned, a most remarkable indict- 
ment against the election officers in that district. Multiply the whole 
number of precincts by 493 and you will see how many of them have 
been indicted in one way or another; at least, complained about in 
one way or another in this notice of contest. 

Mr. Morgan has been assailed for being connected with two publi- 
cations. That, so far as I am concerned, I deprecate. The charge 
was made against him, and not one word of proof has ever been 
introduced in this record that he had any knowledge at all, much 
less did he connive at and direct the circulation which is charged in 
substance here. Many charges are made — blanket charges — cover- 
ing that whole congressional district and each and every precinct in 
it, and with no attempt to make proofs of any kind except in 16 
precincts. We submit it is unfair to the contestant; we submit it is. 



142 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

unfair to this committee, to introduce evidence of such , trifling 
import and of such glittering generality in character as to cast addi- 
tional burdens upon this committee and upon the House. When 
men go into an election contest they should not only charge specific- 
ally and with care, but they should undertake to prove what they 
charge. 

Mr. Broussard. Pardon me. You do not understand that any 
charges were made against Mr. Morgan by the contestant with com- 
plicity in the circulation of the anonymous circular, except as a legal 
conclusion ? 

Mr. Michener. I think it is a charge of fact, if you please. 

Mr. Kussell. I think it is charged his agent did it. 

Mr. Michener. No. May I contradict you, in a gentlemanly way, 
I hope, merely to indicate my difference of view. On page 4 it is 
said that prior to said election and with the consent, knowledge, and 
connivance of the said Morgan, contestee, it was sent to every pre^ 
cinct election officer in the district. 

Mr. Russell. That was the pleading. 

Mr. Broussard. It is in the notice of contest ? 

Mr. Michener. Yes; and at various other points in the same 
paper, on the same page 4 and again on page 5. The charges were 
direct. 

Mr. Russell. He says he connived at it. 

Mr. Broussard. That is in conformity with the usual custom in 
such a pleading. It is pleaded largely as conclusion. You do not 
think this committee should understand that there are direct charges 
of complicity made against Mr. Morgan in that ? 

Mr. Michener. Certainly, under those affirmations, and if he had 
introduced proof of that land and had opportunity to put witnesses 
on the stand it certainly would have been very direct and in harmony 
with his allegation. 

But let us pass that by as a part of the feeling growing out of a hot 
campaign in Oklahoma, and let us now submit this case, so far as the 
contestee is concerned, on the evidence and the law. 

(The committee thereupon adjourned to meet Wednesday, May 6, 
at 10 o'clock a. m.) 



Committee on Elections, No. 2, 

House of Representatives, 

Wednesday, May 6, 1914- 
The committee this day met, Hon. James A. Hamill (chairman), 
presiding. 

The Chairman. Judge Carney, we will hear you this morning, and 
you may proceed now. 

ARGUMENT OF JOHN J. CARNEY, ESQ., CONTESTANT. 

Mr. Carney. Mr. Chairman and members of the committee, 
before proceeding with the discussion of this case I wish to thank you 
and each of you for the great interest you have manifested in the pro- 
ceeding before this committee and the diligence with which you have 
labored to try to get at the truth of the controversy in this case. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 143 

I wish to begin my remarks by calling the attention ot the com- 
mittee to the fourteenth paragraph of my petition, found on page 6 
of this record. That paragraph says: 

Fourteenth. That in seven precincts of Texas County, which was then and there 
in said congressional district, and is now in said congressional district, in the general 
election held for the said office on the 5th day of November, A. D. 1912, no returns 
were made to the county election board by the precinct election officials of said seven 
precincts, although elections were held in said seven precincts, and that the names 
of said precincts were and are well known to this contestee; that the precinct election 
officials held elections in said seven precincts upon the 5th day of November, A. D. 
1912; that the ballot boxes were securely locked and the ballots deposited therein; 
that since said election the said ballots have not been tampered with; that they have 
been under lock and key and securely protected since said election, and that upon 
the hearing of this contest and the taking of proof in support of the same your contest- 
ant requests that said ballot boxes containing the ballots cast for said seven pre- 
cincts in said Texas County be duly presented for opening, and that the ballots in 
said seven precincts be then and there counted as between your contestant and the 
contestee, and that the result thereof be ascertained according to law, your contestant 
alleging that the vote in said precincts will show that your contestant received 318 
votes in said seven precincts and your contestee 162 votes, and that your contestant 
have an order requiring the county election board of Texas County securely to keep 
said ballot boxes of the said seven precincts, to the end that the ballots cast in the 
said seven precincts may be counted as affecting the result as between your contest- 
ant and contestee, and so that proof may be introduced, when evidence is taken in 
support of this contest, as to the vote in said seven precincts in said Texas County. 

This paragraph deals with a part of the case to which your attention 
has not yet been called, chiefly, I presume, for the reason that no testi- 
mony was taken in support of this paragraph of the petition. In 
justice to the committee and myself I think that 

Mr. Morgan (interposing). Mr. Chairman, I presume that if Judge 
Carney discusses now a new proposition in this case, a proposition that 
has not been put before the committee before, that I would have some 
little time in which to reply to his statement on that proposition. I 
think that is customary. 

The Chairman. Mr. Morgan, I do not believe there is any proposi- 
tion of any kind connected with this case which has not been dis- 
cussed before the committee. 

Mr. Morgan. The reason I suggest that is that I thought I ought 
to have an opportunity to reply to any new proposition which might 
be presented and to give the other side of it. 

The Chairman. If the members of the committee think they want 
more light on any question connected with this case I am sure they 
will be glad to hear you upon it. 

Mr. Morgan. I thought Judge Carney said he would call the atten- 
tion of the committee to a proposition which had not yet been men- 
tioned. 

Mr. Carney. I do not think it will be necessary for you, Mr. Mor- 
gan, to answer this, in view of what I contemplate saying upon the 
question. 

This particular phase of the question deals with a certain number 
of precincts in Texas County, which was included in the second con- 
gressional district of Oklahoma, and pertain to our loss in the count 
of the votes in that county of about 150 votes. 

In justice to Mr. Morgan, I wish to say at this time that I do not, in 
that petition, wish to be understood, nor do I now wish to be under- 
stood by the members of this committee, that either I nor my attorney, 
nor anybody else that I know of, want to hold Mr. Morgan responsible 



144 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

for this particular loss to me in that county. This trouble did not 
arise, I am sure, by any suggestion from him, or by reason of any 
suggestion by his manager, or anybody connected with his campaign 
headquarters in Oklahoma City. 

The loss to me in that county, as alleged in the petition, was approx- 
mately 150 votes. The petition says the number was 156 votes. 
After it was ascertained that this trouble had occurred, that this diffi- 
culty had arisen, I undertook to have testimony taken with reference 
to the loss, to try to have the votes counted for me, and I sent a man 
there for that purpose. When he reached there it was ascertained 
that matters were in such a confused state that the testimony could 
not be taken. The ballot boxes, it seemed, had been rifled; even the 
returns that the officers are supposed to keep were gone, and there was 
no way, at that time, to ascertain what the loss was, except from the 
memory of the persons who took the returns to the county election 
board from the various precincts. 

After very considerable delay I ascertained this fact, but at that 
time the time for taking the testimony, according to the rules laid 
down by the statute, had elapsed, and the testimony was not taken. 

Since coming here I have learned — at least it has been made apparent 
to me — that testimony is frequently taken, or may be taken m those 
cases, after the time specified by the United States statute has leapsed, 
or at least it seems to me that such an order has been made in one 
contest about which I have been informed, in the present Congress. 
I did not know that, and I supposed that the committee in those cases 
was governed by the apparently rigid rules laid down by the statute, 
and for that reason I made no effort later to take this testimony. 

I spoke to my attorney about this and he did not know it ; he did 
not know that such rules prevailed in the committees, and we did not 
take that testimony. I do not know the exact number of votes I lost. 
Mr. Morgan's attorney when I spoke to him about it, at one time was 
willing to concede that I had lost more than a hundred votes, but I 
thought I had lost more, and I wanted to take testimony, but by the 
time I got the facts that I thought were necessary in procuring the 
testimony, the time had elapsed and we did not take it at all. 

Mr. Morgan, in discussing this case, referred to a great many differ- 
ent matters and subjectsnot contained in the record. He quoted some 
statistics printed by the United States Census Bureau in support of 
his contention that the negroes of Oklahoma were not as illiterate a lot 
of people as we had alleged they were. He made charges, in fact, that 
the negroes down there in Oklahoma City were almost of as high a 
grade and had almost as much culture and education as the white 
people. . 

Now, gentlemen, I have those statistics on that question different 
from those which Mr. Morgan submitted. I am not willing, however, 
here to admit that the negroes of Oklahoma County, or Kingfisher 
County, or of Blaine County, or of Lincoln County, or of any other 
county in the State of Oklahoma where negroes exist in such large 
numbers, are as intelligent or as well qualified to vote as the white 
people are. . - _. 

I know and you know, gentlemen, that this question of the literacy 
and illiteracy of a people is a very hard matter to determine and a 
person taking the census might readily come to a wrong conclusion, 



CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 14r5 

either intentionally or accidentally or otherwise ; with reference to 
what is the status of illiteracy among negroes. 

Now, I have no doubt that a great number of those negroes, 
probably a majority of them, can write their name, so that you might 
be able to read them. They might, perhaps, if you give them a 
sufficient length of time, be able to read a little, a very little; and I 
submit to you gentlemen that in the contemplation and study of our 
election laws of Oklahoma and of every other southern State in the 
Union, in view of the negro's natural stupidity and of his inability to 
grasp political questions and political subjects and every other subject 
with which the negro has to deal, that something more should be 
required of him than the mere qualification of him writing his name 
or reading from the primer. 

Mr. Morgan quoted again from the record and showed that in the 
second congressional district there are more than twice as many 
illiterate white people as there are illiterate colored people. I would 
hate to believe that that is true. It may be true, but I would be 
more inclined to believe it was a mistake on the part of the census 
taker. 

I want to state to you gentlemen that I consider such references as 
that almost as a direct insult to the intelligence of our white population 
in the State of Oklahoma. I want to say to you gentlemen that in 
the second congressional district in which I live and in which Mr. 
Morgan lives, that there is, in my opinion, as intelligent a class of 
white people as there is in any other State in the United States, within 
a similar boundary. The people came there from every portion of the 
United States. Naturally, some of them were adventurers, thrifty, 
and desirous of improving their condition. They came there for that 
purpose, and settled upon the farms and in the cities of that district, 
and they have succeeded; they have done well; they have helepd to 
build the great State in an incredibly short time. 

On the prairies of that district, when I first went there, there was 
scarcely anything but a wild, savage, uninhabited region. In the 
towns and cities the streets were unpaved and unlighted and there 
were no modern improvements of any kind. 

Since that time, Mr. Chairman and gentlemen of the committee, 
a great change has come over the county, a wonderful change, a 
change wonderful to behold. No magician's wand ever accomplished 
a greater change or a greater transformation than that which has 
come over the State of Oklahoma in the incredibly short space of 
time of 15 or 20 years. 

I want to submit to you gentlemen in all candor that I do not 
think that people who are illiterate or backward or ignorant could 
accomplish one-half of what the people of Oklahoma have done in 
that short space of time. 

Mr. Morgan says he speaks for the Democrats, that he speaks for 
the Socialists, and that he speaks for the Republicans in his appear- 
ance before this committee. Now, my friends 

Mr. Bowdle. What is the percentage of the negro population in 
Oklahoma ? 

Mr. Carney. Statistics were submitted by Mr. Morgan in his argu- 
ment before the committee a few days ago which gave the negro 
population in Oklahoma as 137,000, and which also gave the number 
46996—14 10 



146 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

of illiterate whites as 37,000 and the number of illiterate negroes as 
17,000. 

I have looked at the record submitted by Mr. Morgan, and accord- 
ing to the returns, I find that those figures are correct, according to 
the returns made by the statistician. I do not know what basis they 
acted upon in compiling those returns. I do not know whether or not 
they counted every full-blooded negro in Oklahoma to make up this 
total of 137,000, and excluded everybody else. I do not know 
whether or not they included the half-breeds or the quarter-breeds or 
the eighth-breeds. But I am thoroughly convinced that they did not. 

Mr. Broussard. Let me ask you a question right there. 

Mr. Carney. Certainly. 

Mr. Broussard. At some former time did not some of the Indian 
tribes in the Territory adopt a great many of the negroes into their 
tribes ? 

Mr. Carney. Yes, sir; the Creek Civilized Tribe of Oklahoma, 
when they went from the east to that country took with them their 
slaves, and held them as slaves until the slaves were emancipated by 
the proclamation of President Lincoln. Those negroes were held in 
large numbers by the Creek Indians of Oklahoma, under the condi- 
tions which came up there, and they became intermixed and they 
are intermixed now, to a large extent, with the Indians. 

Mr. Broussard. Might it not be that the census enumerators clas- 
sified them as Indians ? 

Mr. Carney. It is probable they did. 

Mr. Broussard. They do, in law, belong to the tribes. 

Mr. Carney. They are, of course, members of the tribes. They 
have been adopted into the tribe. In giving the allotments of lands 
to the Indians the negroes were allotted lands the same as the Indians 
were. 

I want to say to you gentlemen that in that country you will find 
that a very large percentage, I would say a majority, of those Indians 
are mixed with negro blood. You can see it very plainly in their 
physiognomy and their ways of acting. 

So I can not believe, and I do not believe, that the statistics, as 
read by Mr. Morgan, give a correct report of the situation, as to who 
are real negroes or who are people of negro blood in the State. 

Mr. Broussard. If it would happen there that if the negroes that 
have been adopted into these tribes, with the sanction of the Federal 
Government, oi with the demand of the Federal Government as I 
recall some of the adoptions, were to be classified as Indians, then, 
as a matter of fact the number of negroes would be much larger than 
the census figures indicate ? 

Mr. Carney. I do not doubt that. 

Mr. Stafford. Was the case instanced by Mr. Broussard peculiar 
to that one Indian tribe of Cre ->dians, or is that a common practice 
among other Indian tribes ? 

Mr. Carney. As far as I know that is, but where any extensive 
adoptions are going on 

Mr. Stafford. What is the population of the Creek Tribe ? 

Mr. Carney. There are some Chickasaw negroes and some Co- 
manche negroes and some Kiowa negroes that were adopted and 
took 

Mr. Stafford. What is the population of the Creek Tribe ? 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 147 

Mr. Carney. I do not remember. 

Mr. Stafford. Can you give us some estimate of it? 

Mr. Carney. They are not enumerated as a tribe, because their 
tribal government has been dissolved. 

Mr. Stafford. Can you estimate generally; can you tell us 
whether there are 10,000 or 100,000? 

Mr. Carney. I do not think there are more than 10,000. 

Mr. Rogers. Are they mostly in the second congressional district? 

Mr. Carney. No, sir; there are none of those in that congressional 
district. Mr. Bowdle asked me a question as to what the negro 
population was. 

Mr. Rogers. My inquiry was as to the second congressional dis- 
trict. 

Mr. Carney. Yes, sir; in the second congressional district there are 
none of those Creek Indians, because the Creek Nation does not 
extend into the second congressional district. 

Mr. Bowdle. Mr. Carney, let me suggest this proposition, and ask 
you whether or not it is correct. As I gather it, the tendency of 
colored men in the South is not to vote unless invited to vote. Is 
the tendency of the negroes in Oklahoma to vote unless prevented 
from voting? 

Mr. Carney. Decidedly so. 

Mr Bowdle. Does that state the political and sociological situa- 
tion there ? 

Mr. Carney. Decidedly so. 

Mr. Broussard. Let me follow Mr. Bowdle's question with an- 
other one. I understand that in inviting population into Oklahoma, 
by people who are interested in disposing of lands, that in some 
sections of the South negioes were invited to go there because they 
could not vote in the States from which they came, but they could 
vote if they went to Oklahoma. Is that a fact? 

Mr. Carney. Yes, sir; they always have voted without any 
restrictions until the adoption of the grandfather clause through an 
amendment to the constitution. 

Mr. Broussard. So that might explain the tendency that the 
negroes have had, and their desire to vote, by moving into that locality 
with a view to exercising the franchise which they could not do in 
the State from which they formerly came. 

Mr. Carney. In the opening of that country and settlement of 
that country, during the period of its settlement, negroes came in 
large quantities, in colonies from the South. A great many came 
from Tennessee and from Mississippi and settled in colonies. Some 
of those colonies are in the second congressional district of Okla- 
homa, principally in Blaine County. 

Mr. Broussard. Some went there from Louisiana? 

Mr. Carney. But not in that district. 

Mr. Broussard. I do not know about that. 

Mr. Carney. Now, gentlemen, Mr. Morgan, in the spirit of en- 
thusiasm which prompted him to speak as he did in his opening 
statement, said he came here as the representative or spokesman of 
the Democrats and the Socialists and the Republicans of Oklahoma. 
I do not know about that. 

If the spirits of the great dead take an interest in affairs like this, 
and listen to such statements, I am disposed to believe that Thomas 



148 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN". 

Jefferson, if he could have heard that statement, would have mut 
tered a strong denial, and the great, and as most of us believe, the 
deluded Karl Marx, would have shrieked a denial. 

Mr. Morgan, in Oklahoma, has not been regarded as much of a 
Democrat; but, on the contrary, as I understand it, has been regarded 
as a standpatter — took in the Payne Aldrich bill hook and bait — 
went the whole hog, and I think that part of his speech should be 
accepted with great limitations. 

The Chairman. He has not any affiliations with the Bull Moosers 
out there, has he ? 

Mr. Carney. Well, I do not know. He seemed to make them 
affiliate pretty well. They would not get out any ticket in the dis- 
trict; there was no Bull Moose candidate, and I think Mr. Morgan, 
when occasion demanded, could make a Bull Moose speech. 

Now, gentlemen, Mr. Morgan in the course of his remarks before 
this committee made some reference to this contest as far as it 
reflected the sentiments of the Democrats of the State and of the 
second congressional district, and in very broad and plain terms said 
he did not think that the contest here filed and represented by myself 
and my attorneys reflected the sentiments of anyone scarcely, except 
those appearing in it, or words to that effect; and he even went so 
far as to say that in his opinion, that if the matter were left to the 
decision of the Representatives in Congress from Oklahoma and the 
Senators from Oklahoma and men of influence in that State that he 
would come out victorious in this contest. 

I do not know what to say in answer to that kind of a charge. It 
is a very broad — I would almost say audacious — charge to make 
before this committee. I have not so far received any discouraging 
expressions from the Members of the Oklahoma delegation in Con- 
gress. On the contrary, everyone of them who has spoken to me 
concerning the matter has wished me well, and they have all spoken, 
except the two Republican Members of the delegation in the House, 
and it must be that Mr. Morgan, by some sort of telepathic communi- 
cation, has received information that is not revealed by the spoken 
words of the Members themselves, and lies in their own consciences. 
In their spoken words they have said differently. 

Mr. Oglesby. You used the word " audacious" in the sense of 
bold? 

Mr. Carney. Yes, I think so. 

Mr. Stafford. " Brash," I believe, is the southern expression. 

Mr. Carney. Mr. Chairman, a great deal has been said before the 
committee concerning the letter written by the United States district 
attorney for that district and the warning circular which was sent out 
with the letter to the various Democratic election officials in the 
various precincts in that district. 

On the part of my counsel it has been contended very strenuously 
and emphatically that this warning circular was a matter of grave 
importance, and that it had a great influence on the determination of 
this election. 

Mr. Morgan and his counsel seem to think differently and treated 
the matter rather lightly, undertaking to show from the record that 
it had very little influence on the outcome of the election and upon 
the question of determining the vote cast at the various polling places 
in the district on election day. 



CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 149 

Now, gentlemen, I do not know whether you have all had cases 
like this. I know that some of you have not had, because in the 
regions where some of you live this trouble does not arise. I do not 
know whether you have reflected upon the probable consequences of 
such a circular and the probable effect it might have upon the minds 
of the precinct election officials who might receive it. I am speaking 
now to the most intelligent jury I ever addressed, educated gentle- 
men. Most of you, as I observe from the Congressioanal Directory, 
have had some academic experience, have received degrees from col- 
leges. You know from your academic learning, and from your ideas 
of and experience with humanity as lawyers and men of affairs, what 
influences the human mind and what effects certain conditions may 
produce. 

I am going to speak to you gentlemen from my standpoint, my 
viewpoint of what the probable effect, as I look upon it, this circular 
might have upon the mind and the action of the precinct inspector 
who might receive it a day or two before election. 

We will suppose this particular inspector to be a man who is 
respected and honored in his community, as they generally are. We 
will suppose he is married, the head of a family, with a wife and a 
son and a daughter, and a little golden-haired baby. He goes to the 
postoffice a day or two before election, and he gets this circular and 
this letter in an envelope addressed to him, and he opens the envelope 
and he reads the circular and the letter. He sees the warning threat 
contained there, and at first, perhaps, it does not impress him greatly. 
He will say to himself, perhaps, ' ' I will disregard this ; it is only an 
idle threat, and I will go home, and then I will go from there to the 
polling place on election day and do my duty." 

On his way home he thinks about it and decides he will talk it over 
with his wife, as the circular tells him to do. He shows it to his wife 
and she reads it, and of course, being of a more impressionable nature 
than her husband, she is frightened at it, especially when she sees that 
the letter tells him about the cases of two men who were convicted 
under a law like that and under conditions like those just a short 
time before and were given sentences in the Federal prison. 

His wife becomes seized with great terror. She begins to implore 
her husband, in the name of himself and his family and his little 
children, to respect the warnings contained in the circular and in the 
letter. He begins to reflect upon it more seriously, of course, because 
he sees that the letter tells the truth in regard to the men who were 
convicted, and gives him a serious warning. He respects himself, 
and he loves his family. He is honored in his community, and he 
wants to maintain that respect, and he wants to maintain the love of 
his family, and above all he wants to protect and nourish and comfort 
that family with an untarnished name. The result was that some of 
those men resigned from their positions in their respective precincts. 
A great many of them did not resign; a vast majority of them did 
not resign. That man goes to bed after receiving that circular the 
night before election, and he thinks it over before he goes to sleep. 
Gentlemen, I can imagine that if that man is an intelligent man, and 
all of them are, and the kind of man I have told you about, that in a 
great many instances there would grow up a conflict in that man's 
breast over that matter during the entire night. 



150 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

The Chairman. Mr. Carney, I do not think there is any doubt in 
the minds of the members of the committee but that that circular was 
contemptible, and that it did have a tendency, more than a tendency, 
to intimidate the persons to whom it had been sent. The thing that 
is bothering us is to connect the contestee with it in some way. 

Mr. Carney. Yes, sir. Now, on that question, gentlemen, of 
course Mr. Morgan has gone upon the witness stand and sworn that 
he had nothing to do with it. 

The Chairman. I want you to show us if that statement of Mr. 
Morgan's is incorrect, and even if it is correct — suppose he did not 
know anything about it, as I have every reason to believe that Mr. 
Morgan is speaking the truth — assuming that he did not know any- 
thing about it, is he chargeable with it ? 

Mr. Carney. Mr. Morgan says he knew nothing about it. 

Mr. Chairman. It is up to you to show us that he must have known 
something about it, or else, if he did not know anything about it, 
that he is, notwithstanding that fact, chargeable with whatever effect 
that circular created. 

Mr. Carney. Of course, Mr. Chairman, we have no direct testi- 
mony to show that Mr. Morgan sent this circular. We have no 
testimony to show that his campaign manager of two years before, 
Mr. Boardman, sent out the circular. We have no direct testimony 
to show that the circular was sent out from his headquarters at 
Oklahoma City, although it appears in the record of Mr. Davis's case 
that this warning circular was printed in Oklahoma City, and at one 
of the printing offices in that town. The testimony contained in the 
record printed 

Mr. Oglesby. At which office was that ? 

Mr. Carney. The Times-Journal office. 

Mr. Oglesby. My recollection is that in reading over the testimony 
that the representative of that office swore it was not printed there. 

Mr. Carney. No; he swore it was printed there. 

Mr. Oglesby. I think there were two or three people who denied 
that; I think they all denied it. 

Mr. Carney. I was about to go further in describing the influence 
that that circular and letter might have had upon the mind of that 
precinct election official. When he went to the polls on election day, 
if he did not resign from his position and a new man had to be ap- 
pointed, what kind of feelings must he have had with reference to the 
obligations resting upon him in regard to the enforcement of that law ? 
Do you think he was in a position to act freely of his own volition 
with that kind of a feeling in his bosom and in his brain concerning 
his position in society and his position with respect to his wife and 
his children? Do you not believe, gentlemen, that it is more than 
probable that when he went to the election place that day he went 
there after making a promise to his wife, and expecting to obey it, 
that he would do nothing which would get him into trouble, and that 
he would not enforce this law according to the spirit of the law ? 

It is true that they all swore that this circular did affect their 
minds. Some of them swore that they enforced the law. But what 
kind of an enforcement do you think they made of that law? Do 
you think for a moment that any married man, especially a man with 
a wife and children, with that kind of a warning circular, telling him 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 151 

of the conviction of two men a year before, with that kind of a circular 
hanging up before his face as he went all the day through, was going 
to enforce that law in the spirit in which it was intended to be en- 
forced by the lawmakers of the State of Oklahoma and every other 
southern State where such a law exists ? To be sure, he would not. 
To be sure, if any negro came there and wanted to vote and insisted 
upon it, he would let him vote, unless the negro, perchance, was 
totally illiterate. 

The Chairman. Now, I believe with you, Mr. Carney, that that 
circular would and did have a tendency to make those men very 
cautious, to say the least, in enforcing that law, even though it did 
not scare them, although it probably frightened many of them. 

It is your contention that this effect upon their minds was such 
that it caused the election of Mr. Morgan? In other words, did it 
let in enough negro votes to cause the election of Mr. Morgan ? That 
is what you have to show. 

Mr. Carney. I want to say to you, Mr. Chairman and gentlemen 
of this committee, that if the newspapers of that State had remained 
silent upon this question and these warning circulars had not been 
sent out to the election officials a day or two before the election Mr. 
Morgan would not have been elected. 

The Chairman. That is something we want to know. 

Mr. Taylor. Is there anything in the record shat shows that ? I 
would like to have the reference to that if you can find it and give 
it to us. 

Mr. Carney. There is nothing, only by inference, gentlemen. 

Mr. Bowdle. To compress within its narrowest limits the propo- 
sition which you and your counsel have advanced, it would seem to 
be something like this, that the State is more interested in an honest 
election than it is in the innocent victor at the election. In other 
words, the victor at the election may be honest and innocent and the 
election at the same time may have been a dishonest one ? 

Mr. Carney. That is true. 

Mr. Bowdle. That, as I see it, is the proposition for which you are 
standing. 

Mr. Carney. Now, gentlemen, there is no use in trying to conceal 
the elemental truth contained in this law; I mean the grandfather 
clause. It was intended to keep the great majority of the negroes 
of the South from voting. It is true that in Wagoner County, in the 
case which Mr. Morgan cited, the officers went too far. They ex- 
cluded men from voting there who had the right to vote, and I want 
to say to you, gentlemen, and I say it not as a partisan, not as a par- 
tisan Democrat, not as a man who hates the negroes, because I do" 
not hate them, but as a man who believes that the purity of our 
Government and the perpetuity of our institutions is preserved only 
by intelligent voting, that a strict enforcement of this law should be 
carried on in every State in the Union where it exists. 

The law provides that they shall read a section of the constitution 
and write it, if necessary — that is, the constitution of the State. 
There are different ways of reading, gentlemen. Some people might 
read that constitution if they were given time enough to do it, who 
would read absolutely without making any sense out of it or putting 
any sense into it. Some people might write it in a way. 



152 CONTESTED ELECTION CASE OP CABNEY VS. MORGAN. 

The question is if a man reads and writes it intelligently and 
knowingly, then he is entitled to vote. If he does not read and write 
it intelligently, then he is not entitled to vote. Now, with reference 
to the question asked a while ago, I want to say this : This question 
has been discussed so much that I hardly think it proper at this time 
to go into it at length. The brief of the contestant, myself, dis- 
cussed that question. You will find on page 43 of the brief a very 
intelligent and somewhat lengthy discussion of the question of the 
effect of intimidation upon an election. On page 43 it says: 

It is not necessary that the persons who are guilty of violence or intimidation should 
be connected with the candidate; but if there is such violence that the voters can not 
safely deposit their votes, the election should be set aside, regardless of the relation 
of the persons by whom it was committed. 

Mr. Rogers. Just a moment there. Did not the counsel for the 
contestee admit the soundness of that principle yesterday, and seek 
to distinguish this case, because here there was no exclusion of votes 
improperly, but illegally and potentially an inclusion of votes 
improperly ? 

Mr. Carney. He undertook to distinguish it. 

Mr. Rogers. You do not agree with the soundness of that dis- 
tinction ? 

Mr. Carney. No, sir; I do not think that conclusion is deduced 
from the law. 

Then, on the next following page of my brief, there is given the text 
of the minority rule laid down in a case which was tried in the Forty- 
ninth Congress. It says: 

WHEEE INTIMIDATION SHOWN, BURDEN ON OTHER PARTY TO SHOW RESULTS NOT 

AFFECTED. 

Where intimidation is practiced over men sufficient in number to affect the results 
the burden of proof is devolved upon him in whose interest the intimidation is done 
to show that the intimidation did not affect the result. If this proof be not made the 
intimidation is so interwoven with the vote that it is impossible to separate with 
reasonable certainty the good from the bad vote, and the whole precinct must be 
rejected. 

That was in the minority report of the case of Hurd v. Romeis, in 
the Forty-ninth Congress. 

In the case of Small v. Tillman, in the Forty-seventh Congress, the 
question of violence arose, and the committee held as follows : 

Where violence was prevalent throughout a county, the canvass and count of the 
vote involved in inextricable confusion and fraud, and the record illegally suppressed , 
the returns from the county were thrown out. 

Now, gentlemen, these decisions, it would seem plain enough, would 
hold that where it can be shown that intimidation was practiced upon 
the election officials, or intimidation of any kind, that the effect of 
such intimidation is to throw out the ballot boxes where the intimi- 
dation was practiced. 

Mr. Morgan, in the course of the discussion of this case, read from 
a newspaper report, from a printed report in the Oklahoman, certain 
extracts concerning the case in Blaine County, and tried to leave the 
impression upon this committee that the acts of election officials in 
that county in disposing of certain precincts was entirely without 
warrant and entirely unjustified, and that therefore these votes should 
be counted in his behalf. 



CONTESTED ELECTION CASE OF CAENEY VS. MORGAN. 153 

I want to call your attertion to page 144 of the printed record in 
this case, where it is shown by the chairman of the Democratic cen- 
tral committee in that county, who was called as a witness in this 
case, that in that county the intimidation probably was more exten- 
sively prevalent, on account of this circular, than in almost any other 
county in the district where the intimidation was practiced. He says 
on page 144 of the record that several of the precinct election officials 
resigned rather than incur the displeasure of the district attorney by 
probably trying to enforce the law. He says there were others there 
who discussed the question with him and tried to resign, or wanted to 
resign, but who did not, at his suggestion. 

So, gentlemen, it is plain from this record, plain from all the 
testimony in this case, that this intimidation, this warning circular, 
had its effect throughout the entire district. There was no part of 
the district where a negro would probably vote into which this cir- 
cular was not sent, and where its influence was not felt upon the 
election officials. Now, it has been said, and your chairman said 
a while ago, that you agreed with me that the sending out of this 
warning circular and this letter was an act of pernicious activity on 
the part of the United States district attorney who sent it out. 

I might go outside of the record, gentlemen, again, in answer to 
a statement made by Mr. Morgan in the concluding part of his 
argument. And that was with reference to the uniform fairness 
with which he had acted in the conduct of this election. I do not 
accuse him individually of ever having misstated me in that con- 
test between him and me in that election. He did not, that I know of. 

But I want to say to you gentlemen that the sending out of this 
circular was the culmination of one of the most dastardly and dirty 
campaigns that was ever carried on against any man in any election 
for a seat in Congress, anywhere in the Unit eel States, and I do not 
now accuse Mr. Morgan of having caused that dastardly campaign 
that was carried on. But it redounded unquestionably to his 
benefit. He submitted testimony here and tried to show that I 
did not get the full vote of my party in that district. 

Mr. Bowdle. May I interrupt you right there to ask you just one 
question ? 

Mr. Carney. Certainly. 

Mr. Bowdle. At what point of time during the campaign did 
you become aware that this literature had been sent out ? 

Mr. Carney. Not until the evening before or the day of the 
election. 

As you gentlemen may know, there were two districts in Oklahoma 
which are supposed to be Republican, and the rest of the State was 
known to be overwhelmingly Democratic. No effort was made on 
the part of the campaign committees particularly to defeat any 
particular member of the State ticket, but the fight to win was centered 
against me and my friend Mr. Davis, who is a contestant in another 
case here. All the methods of vituperation, calumny, abuse, and 
ridicule that an ingenious campaign manager could think of were 
resorted to in that district to try to encompass my defeat. 

It may seem ridiculous to you gentlemen to mention it, but the 
most potent instrument, the most powerful means that can be resorted 
to, generally, in a campaign of any kind is to try to ridicule a man 
who is running for office, and that was done in this district unremit- 



154 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

tingly and intermittently and continuously until the campaign was 
over. 

The Chairman. You are not objecting to a man ridiculing another 
man in a campaign ? 

Mr. Carney. I am only answering now Mr. Morgan's statement 
that he conducted an honest campaign and tried to leave the impres- 
sion with this committee that nothing of wrong was done except 
the sending out of these circulars. But I say to you gentlemen 
that that was the culmination of all these base calumnies of the 
whole dirty business. 

Mr. Taylor. You started to refer awhile ago to Mr. Morgan's 
statement that you did not receive the full Democratic vote of the 
district. Then you passed on to something else. Do you care to 
say anything further in regard to that matter. 

Mr. Stafford. Mr. Morgan made the statement that you did not 
receive the full strength of your party. 

Mr. Carney. I think I did receive the full strength of my party's 
vote, but I would have received more than that if it had not been 
for the methods resorted to. 

It is true, gentlemen, that Mr. Morgan referred to this, and I 
thought I had a right to answer him in the manner I have done. 

As I said awhile ago, this was done continuously. 

I will say further, gentlemen, in defense of myself here and in 
defense of the apparent insinuation that Mr. Morgan casts upon me 
by saying that I did not get my party vote, that when I became a 
candidate for the nomination for Congress I was a delegate to the 
Democratic national convention at Baltimore, having been chosen 
for that office by the people in Oklahoma. 

The night I left Oklahoma City to go to Baltimore I was per- 
suaded by one of my friends to sign an application for a position on 
the ticket as a candidate, and reluctantly I did so. I went to the 
convention, which concluded, as I recollect, on the third day of 
July. I left the convention and went back home to visit my mother 
in the State of West Virginia, and I stayed there several days and 
reached Oklahoma City on my return on the 15th of July. On the 
17th of July I began a campaign for the nomination for Congress, 
and I received that nomination on the 4th day of August following. 

Previous to that time there had been several other candidates for 
the office. One of the men who was a candidate had been campaign- 
ing for the nomination for six months. I secured the nomination in 
opposition to all the other candidates, and I will say to you gentle- 
men of the committee that when I accomplished that it produced a 
certain degree of coldness on the part of every candidate who was 
against me, except one. One of them perhaps became more than 
cold. This may account, in some degree, for Mr. Morgan's insinua- 
tion that I did not carry my full party vote, although Mr. Morgan 
knows that the largest claim he makes for a majority in his district 
does not equal the majority he gained two years before in the elec- 
tion nor the majority he gained four years before in the election. 

Mr. Oglesby. In this case of Hurd v. Romeis, from which you 
cited the minority report, it says that — 

Where intimidation is practiced over men sufficient in number to affect the result 
the burden of proof is devolved upon him in whose interest the intimidation is done 
to show that the intimidation did not affect the result. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. *155 

Do you contend he should be required to analyze the evidence and 
separate the pure votes from the bad votes in precincts other than 
those specifically charged by you as being affected ? 

Mr. Carney. No, sir. 

Mr. Oglesby. But if the votes in those precincts were thrown out 
he would still have a majority. 

Mr. Carney. That is not true, if you will take the trouble to count. 

Mr. Oglesby. The tabulation in his brief seems to sustain that 
proposition; from his figures, if they are a correct tabulation of the 
testimony, that seems to be sustained. 

Mr. Carney. I do not think so. 

Mr. Oglesby. I think so. 

Mr. Carney. My attorney counted them and showed me the 
tabulation, and that is not my recollection of it. 

Mr. Oglesby. I do not mean to say that the tabulation of the 
figures in the record shows it, but I mean from the tabulation which 
Mr. Morgan's brief makes it seems to sustain that contention. 

Mr. Rogers. May I ask you one question right there? 

Mr. Carney. Yes, sir. 

Mr. Rogers. I spoke to you the other day after the hearing had 
adjourned with reference to the. method of conducting the voting 
under the Oklahoma law, as to whether or not the ballot used was the 
secret ballot, sometimes called the Australian ballot; whether that 
was in general use there, under the law, the Constitution, or the 
statutes ? 

Mr. Carney. It is. It is the method of voting which has been in 
use ever since the organization of the Territorial form of government 
there, long before we had a State government. 

Mr. Stafford. Have you any knowledge of what is done with the 
challenged vote, after a man qualified and submits the necessary 
affidavits as prescribed by the statute ? 

Mr. Carney. If it is done according to the methods prescribed by 
law, those ballots are preserved in a separate bundle and sent to the 
county election board. 

Mr. Stafford. After that, what is done with them ? 

Mr. Carney. They are preserved by them. 

Mr. Stafford. In case of a contest or dispute ? 

Mr. Carney. Yes, sir. 

Mr. McGuire. They must be kept for 90 days, and may be kept 
for a year. 

Mr. Stafford. The theory of the statute being that they are the 
contested vote and that they should be preserved in case of a contest ? 

Mr. Carney. Yes, sir. I think, gentlemen, that a great majority 
of the cases that have been cited, the leading cases, at least, in the 
brief, have already been read to you. They will be found, I think, 
beginning on page 43, and following that there are a number of them, 
showing the views taken by the contestant upon the question of the 
effect of the intimidation due to the warning circular and the letter, 
the effect upon the vote in the various precincts. I do not wish to go 
over those authorities again. I think the conclusion to be deduced 
from these is unquestionably that in every precinct where it can be 
shown that intimidation was exercised on those election officials, 
that this intimidation existed, that in eveiy case of that kind that 
voting precinct ought to be disregarded in the count of the votes in 
this election. 



156. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

Mr. Russell. Have you any estimate of the probable number of 
negroes who voted in that election? 

Mr. Carney. That is set out 

Mr. Russell (interposing). It is placed at 1,700, is it not ? 

Mr. Carney. I think it is placed at 1,740. 

Mr. Russell. Do you think that is correct ? 

Mr. Carney. Yes, sir; that is approximately correct. 

Mr. Russell. What is your judgment about the number of those 
that could not have voted if the law had been enforced ? Have you 
any estimate of that? 

Mr. Carney. I think that very few of them could have voted. 

Mr. Stafford. What do you base that position on? They were 
registered and had certificates of registration, at least a good many 
of them had certificates that were registered ? 

Mr. Carney. Yes, sir. 

Mr. Stafford. The statute makes that presumptive evidence ? 

Mr. Carney. I do not think it does, under the prepsent law. The 
law that was read to you by Mr. Giddings is found on page 232 of the 
Session Laws of Oklahoma, 1910-11. That makes it the duty of the 
inspector to challenge the right of any person to vote — 

and if a person be challenged on the ground that he is not able to read and write a 
section of the constitution, and was not a legal voter under any form of government on 
January 1, 1866, or one whose ancestor was not a legal voter on said date, before being 
permitted to make the affidavit required below, he shall be required to read and 
write any section of the constitution. 

Mr. Stafford. I read that law very carefully, and in my opinion 
it does not bear any such construction as that which you give it. 
It only makes that as a condition. 

Mr. Carney. I think your statement is true, as far as that is con- 
cerned, but it repeals, it might be said, the decision of the supreme 
court, the decision of the supreme court and the statute upon the 
effect the challenging of a certificate of registration may have had 
upon a voter before that date. 

Mr. Stafford. You claim it repeals the section of the statute 
which says positively that the certificate of registration shall be 
regarded as evidence of the qualification to vote, when this section 
does not repeal that section at all. 

Mr. Carney. It doesn't repeal it, in direct terms, but by impli- 
cation. 

Mr. Stafford. That is what the statute provides. 

Mr. Carney. Yes, that is the statute. 

Mr. Stafford. Read it as strictly as you can, it only gives the 
election officials at the election the right to challenge 

Mr. Carney. That law was passed in 1907 or 1908, and it is 
contained in the Session Laws of 1907-8, and unquestionably if 
there was a presumptive right, there was no other decision of our 
courts, if there was a presumptive right of an elector to vote with a 
certificate of registration, that part of the law has been changed and 
repealed by this statute which I have just read, which gives the inspec- 
tor the right to challenge anyone upon election day. 

Mr. Russell. He has a right to question the vote, whether chal- 
lenged or not, as you contend ? 

Mr. Carney. Yes, sir, he has that right, unquestionably 

Mr. Russell (interposing). And if the vote is challenged, then it 
becomes mandatory upon the officers to make the test, does it not? 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 157 

Mr. Carney. Yes, sir. 

Mr. Stafford. No; if lie is challenged, he has to qualify by affi- 
davits. 

Mr. Carney. He is required to read the constitution 

Mr. Russell (interposing). My understanding is that if he is 
challenged it is mandatory to make the test. 

Mr. Carney. Yes, sir, that is right. This is what the statute says 
on that, Judge Russell. 

Mr. Russell. If not challenged, as I have understood the line of 
this argument, the registration certificate that he obtained would be 
prima facie, and if he voted, the vote would be legal, but if challenged, 
then it is the duty of the election officials, to apply the test. Is that 
not right? 

Mr. McGuire. That is right. 

Mr. Carney. The statute says : 

Any election inspector or challenger may challenge the right of any person to vote, 
and if a person be challenged on the ground that he is not able to read and write any 
section of the constitution, and was not a legal voter under any form of government 
on January 1, 1866, or one whose ancestor was not a legal voter on said date, before 
being permitted to make the affidavit required below, he shall be required to read 
and write any section of the constitution. 

Mr. Russell. Now, is there anything in the record that gives any 
approximation at all of the number of negroes who were challenged 
that had certificates ? 

Mr. Carney. No, sir, I think not. 

Mr. Russell. I want to ask you another question. What reason 
have you as a basis for an argument that those negroes voted for Mr. 
Morgan ? 

Mr. Carney. I have a good many reasons as a basis for that argu- 
ment. In the first place, we have in Oklahoma this grandfather 
clause which was passed as a Democratic measure. We have the 
jim crow law, which excludes the negroes from traveling with white 
people. We have the testimony of witness in this record, one witness 
at least, and others, too, that I recall, who swore that the negroes of 
that district were all, or practically all, Republicans, and in one pre- 
cinct we have the testimony of one official who swears that the 
negroes who voted there called for Mr. Morgan's ballot, and desired to 
vote for him. 

In that country, gentlemen, the man who would question a proposi- 
tion as to whether or not a negro was a Republican might have his 
sanity questioned by anyone who heard him make such a statement. 
They are all Republicans. 

Mr. Oglesby. They are getting more intelligent now, some of 
them vote the Democratic ticket. 

Mr. Taylor. Did you get any negro vote at all ? 

Mr. Carney. No, sir. If I did, I did not know it. 

Mr. Oglesby. If you did, some of them deceived you ? 

Mr. Carney. I will say that I have run for office down there several 
different times. I have run for county attorney and for district judge 
and once for delegate to the national Democratic convention, and this is 
the only trouble I have ever had in getting elected, notwithstanding 
Mr. Morgan's insinuation that I was rather an unpopular citizen in 
that community. 

Now, gentlemen, some of you gentlemen live in the South and know 
what the negro is. Mr. Morgan has told you that we have only 137,000 



158 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 

negroes in Oklahoma, but I think, taking all the negroes in, that we 
have probably twice that many, counting all the pure negroes and 
those that are of mixed blood. 

You gentlemen who are not familiar with conditions in the south- 
ern country, I know, do not understand what is to be contended with. 
Did you ever think of the fact, my friends, that in permitting the 
negro to vote in a State where they are in such numbers as they are in 
Oklahoma and in other Southern States, that a great wrong might be 
done to the State and to the community ? 

In Oklahoma, my friends, we have a peculiar condition. Some of 
you men will not agree with me as to what we have done. In the 
making of our constitution we provided for a kind of a Democratic 
and Republican State — I do not mean in a partisan sense, but in a 
political sense. We gave the people the right to exercise the initiative 
m making our laws, and we gave the right of referendum in passing 
on the laws, and the right of the recall, in a restricted sense in this, 
that in the cities of the first class, where they might have charter 
government, the voters nrny recall, by a direct vote, any of the elec- 
tive officials in that city. 

So, you will see in the new State of Oklahoma, whether you agree 
with me upon what we have done or not, we have lodged in the voter 
a greater power than that which is lodged in the voters of almost 
any other State in this Union. 

The negro, therefore, has his enfranchisement insured. I partici- 
pated in the making of that convention, and performed my humble 
share in it, and I am rather proud of what I have done. I approve 
most of the provisions of that constitution, but did you ever think 
of the fact 

Mr. Stafford. Was the grandfather clause submitted for con- 
sideration in the constitutional convention ? 

Mr. Carney. It was discussed, but I do not believe it was ever 
voted upon, for the reason that we had a Republican President at 
that time, and we did not think it would pass muster if it went before 
him for his approval. He had to approve the enabling act, and we 
did not believe he would approve a provision of that kind. 

Now, gentlemen, as I tell you, I am no enemy of the negro. I am 
his friend, as I want to be the friend of every human being. But did 
you ever thi^k of the fact, gentlemen, that in all ages, since time 
began, the white man is the only man who has ever made any material 
progress in the world, or, rather, putting it in another way, that the 
negro has made none? You never heard, gentlemen, of a negro 
writing an Odyssey, or an Iliad, or aniEneid. And you never heard 
of a negro writing a Hamlet or a Paradise Lost. 

Mr. Taylor. I do not suppose you ever heard of his inventing 
anything? 

Mr. Carney. You never heard of a negro ever inventing a steam- 
ship, or ever doing anything in science or art, or producing a great 
painting or a great piece of sculpture; you never heard of any great 
negro in war; you never heard of a negro Napoleon or a negro Caesar, 
or a negro Hannibal during all the thousands of years of history 
marshaling the negroes of his country in offense or defense. 

Mr. Taylor. I am told he is not even on the records of the Patent 
Office. 



CONTESTED ELECTION CASE OF CARNEY VS. MORGAN". 159 

Mr. Carney. You never heard of any negro reformer in religion; 
you never heard of a negro ever accomplishing anything in govern- 
ment. 

Mr. Bowdle. One of the greatest military commanders in history 
was Toussaint L'Cuverture. 

Mr. Carney. He was the only negro in all history of the race who 
ever achieved military distinction. They have never achieved any 
great distinction in anything. 

The most difficult problem that humanity ever had to deal with, 
that of maintaining and perpetuating a republican form of govern- 
ment, can not be done by men who have never accomplished any- 
thing in the world of science or art or of literature, or in any line in 
which the human intellect is required to exercise its knowledge. I 
am perfectly willing that a negro who shows himself intelligent enough 
to vote should be allowed to vote. 

But God being my judge, gentlemen, here before you with all the 
emphasis and all the earnestness I am capable of showing and express- 
ing, I do not think that a race of people who have made a failure for 
all time and in all ages should be enfranchised in this country and 
be given the right to vote, and especially in a country where we have 
conferred upon them an almost unlimited suffrage; therefore, I say, 
gentlemen, that it is utterly wrong, utterly a usurpation of authority 
and power, utterly against the polity and the policy of our party and 
our people in Oklahoma and contrary to our sense of right and justice, 
and wrong to the negro himself. 

We have only to look across the border of our country and to-day, 
my friends, we can almost hear the clash of the cymbals and the roar 
of the cannon. Why? Because an ignorant electorate in that 
country, an ignorant people, were found incapable of governing 
themselves. 

Mr. Taylor. Somebody has handed us a table in reference to 
Oklahoma County showing that the county attorney and the sheriff 
received 560 more votes than were polled in the congressional race. 
What do you say about that ? 

Mr. Carney. I do not know where those statistics were obtained. 
I think Mr. Michener submitted that table. 

Mr. Stafford. It states that they were published in the Daily 
Oklahoman on November 21, 1912. 

Mr. Carney. Mr. Giddings submitted statistics showing that in 
the race for Congress there were more votes cast in the district for 
Congressman than there were cast for Senator. 

Mr. Stafford. He merely stated that, and it was controverted by 
Mr. Michener. 

Mr. Carney. I do not think that he did submit those figures 
showing the vote of Oklahoma County. 

Mr. Stafford. Do you mean to claim that Mr. Giddings submitted 
any figures showing that ? 

Mr. Carney. No; he did not submit any figures. You have not 
submitted any figures that I would be willing to submit as correct. 

Mr. Taylor. I do not know who submitted that table. 

Mr. Carney. Now, Mr. Chairman, my time is about expired. I 
want to conclude by again thanking you for the courtesy and con- 
sideration and interest you have taken in your deliberations in regard 
to this case. 



160 CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 

I, of course, would naturally like to win this contest, and come 
here to help make the laws of this country. It has been my ambition 
ever since I was a young man and first came to this building 20 years 
ago. However, gentlemen, I will say this, that if in the turn of the 
wheel of fortune, I should be deprived of the privilege of appearing 
here, I shall always think I have had a fair hearing before you, and 
not feel any resentment whatever against the members of this com- 
mittee. I thank you, gentlemen. 

The Chairman. As I understand it, that closes the case of Carney 
v. Morgan. 

Mr. Carney. Mr. Giddings, before he left, said that there were 
some figures he was going to procure and which he would submit to 
the committee. 

The Chairman. If you desire to submit them, I think you can 
easily get the unanimous consent of the committee to submit the 
figures to which you refer. 

Mr. Carney. I will 'say this much further, that if we can do so, 
we would like to have the testimony taken with reference to the 
votes in Texas County. 

The Chairman. Do you mean to have us go out there and take 
the testimony? 

Mr. Carney. No, simply to grant me permission to do so. 

The Chairman. But the case may be decided before your testi- 
mony is taken. 

Mr. Morgan. I would object to that. 

Mr. Carney. I expected to make application to the committee for 
permission to go out and take that testimony. 

The Chairman. You have argued this case, both sides have 
argued the case, and if you go out now and get new testimony we 
would have to reopen the argument, because it might bring other 
facts into the case. 

Mr. Carney. There would not be much in that testimony that 
would contradict anything here. The grandfather clause did not 
appear in that county. It was simply a squabble there between 
officers and the candidate for the legislature. It was a matter 
entirely independent of this contest, but it resulted in throwing out 
a certain number of votes for everybody, and it so happened that the 
majority of the votes were for me. 

The Chairman. Have you gentlemen finished arguing your case ? 

Mr. Carney. That closes my case, with the exception of the matter 
which I have just mentioned. With that exception, I have finished. 

The Chairman. I do not think that the committee can let you put 
any new evidence in now, inasmuch as the arguments have been 
concluded. How many votes do you claim were lost to you there ? 

Mr. Carney. The petition says 156. 

The Chairman. What do you claim? 

Mr. Carney. About 156. Mr. Morgan knows the conditions which 
existed out there. 

Mr. Morgan. I do not know anything about what Mr. Carney 
claims there in regard to the votes which he alleged were thrown out 
there. I do not know anything about it, except what I have read in 
the newspapers. 

(Thereupon, at 12 o'clock noon, the committee adjourned.) 

o 

LB 014 



